Case Law Details
Commissioner of Central Excise & ST Vs Adani Power Limited (CESTAT Ahmedabad)
As regards the issue that whether Commissioner (Appeals) has power to remand the matter to Adjudicating Authority, we find that this being a case of refund of service tax, clearly covered by the ratio of Hon’ble Gujarat High Court judgment in the case of Associated Hotels Limited (supra). In the said judgment, the Hon’ble High Court has also referred to the judgments of Hon’ble Supreme Court in the case of Mil India Limited vs. CCE, Noida – 2007 (210) ELT 188 (SC). Therefore, we are of the view that the learned Commissioner (Appeals) has power to remand the matter to the Adjudicating Authority.
FULL TEXT OF THE CESTAT JUDGEMENT
The common issue in all these appeals is that whether the Respondent is entitled to refund as SEZ developers of specific sector namely, Power (generation of electricity) in terms of Notification No. 09/2009-ST dated 03.03.2009 and Notification No. 17/2011-ST dated 01.03.2011. The Adjudicating Authority denied the refund under the said notifications basically on the ground that Respondents supplies electricity outside the SEZ i.e. in the Domestic Tariff Area through transmission lines installed by the Respondent. Therefore, they have violated the condition 2(a) of the notification inasmuch as the services received by the Respondent were not wholly consumed in the SEZ but used for supply of electricity in the domestic tariff area. Learned Commissioner (Appeals) allowed the appeals filed by the Respondent therefore the present appeals filed by Revenue more or less on the same grounds on which the Adjudicating Authority denied the refund claim.
2. Shri S.K. Shukla, learned Superintendent (AR) appearing on behalf of the Revenue reiterates the grounds of appeal. He submits that there is no dispute in the facts of the case that though the Respondent have setup a power plant for generation of electricity in SEZ at Mundra but the electricity generated by the said power plants were supplied in the domestic tariff area, therefore, the service received by the Respondent were not wholly consumed within the SEZ. Therefore, learned Commissioner (Appeals) has wrongly allowed the appeals.
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