CESTAT, BANGALORE BENCH
Commissioner of Service Tax, Bangalore
Akamai Technologies India (P.) Ltd.
FINAL ORDER NO. 461 OF 2012
APPEAL NO. st/2370 OF 2010
JULY 13, 2012
1. This an appeal filed by the department against the Order-in-Appeal No. 270/2010 dated 4.8.2010, passed by the Commissioner of Central Excise (Appeals-II), Bangalore.
2. Heard both sides.
3. The relevant facts, in brief, are that the respondents are 100% E.O.U. engaged in providing “Information Technology Software Service” and “Business Auxiliary Service” and are paying service tax on the said services. In addition, they also paid service tax on services received by them under the category of “On line Information and Data” and other services in terms of Section 66A of the Finance Act, 1994.
4.1 They preferred a refund claim of Rs. 2,35,614/- relating to July 2007 under Notification No. 5/2006-NT dated 14.3.2006 in respect of the unutilised credit accumulated due to export of services.
4.2 The claim related to the following services:
(i) Cleaning activity service
(ii) Security Agency Services
(iii) Courier charges
(iv) Repair & Maintenance Service
(v) Cargo Handling Service
(vi) Commercial Training or coaching
(vii) Courier service
(viii) Internet Telephone service
(ix) Manpower Recruitment service
(x) Pager service
(xi) Rent a cab operator service
(xii) Telephone service
(xiii) Air Travel Agent service
(xiv) Chartered Accountants
(xv) Clearing & Forwarding Agents
(xvi) Outdoor catering service
4.3 The original authority rejected the claim on the ground that the services claimed as input services do not have nexus with the services exported by the respondent. On appeal by the party, the, Commissioner (Appeals) has allowed the refund of all those services except ‘Air Travel Agent service’. Accordingly, he directed the original authority to grant consequential relief to the assessee on submission of Chartered Accountant’s certificate.
5. The department has challenged the order of the Commissioner (Appeals) mainly on the ground that the Commissioner (Appeals) has no power of remand consequent to amendment to Section 35A (3) of the Central Excise Act, 1944 with effect from 11.5.2001 as held by the Hon’ble Supreme Court in the case of MIL India Ltd. v. CCE 2007 (210) E.L.T. 188.
6. The learned Consultant for the respondent submits that the original authority has acted in pursuance of order dated 4.8.2010 of the Commissioner (Appeals) and granted refund amounting to Rs. 2,23,826/- vide Order-in-Original No. 249/2012 dated 08.3.2012.
7. I have carefully considered the submissions and perused the records. The order of the Commissioner (Appeals) is not a remand order and he has clearly held that the refund was available in respect of all services except ‘Air Travel Agent service’. Therefore, I do not find any merit in the submission that the Commissioner’s (Appeals) order is a remand order. In view of the above, the grounds raised by the department challenging the order of the Commissioner (Appeals) are not valid and the decision of the Hon’ble Supreme Court in the case of MIL India Ltd. (supra) does not applicable to the facts of the present case. Further, I find that the original authority has already implemented the order of the Commissioner (Appeals).
8. In view of the above, the appeal is rejected.