CESTAT, BANGALORE BENCH
Commissioner of Service tax, Bangalore
Swiss Re-Shared Services (India) (P.) Ltd.
FINAL ORDER NO. 69 of 2012
STAY ORDER NO. 159 of 2012
APPEAL NO. ST/STAY/184 of 2011 & ST/324 of 2011
FEBRUARY 6, 2012
P.G. Chacko, Judicial Member
This appeal filed by the department is directed against an order of the Commissioner (Appeals) wherein certain refund claim was held to be admissible to the respondent and the amount for refund was directed to be quantified by the lower authority. The only ground raised in this appeal is that the learned Commissioner (Appeals) passed a remand order without having the power of remand. In this connection, the appellant has relied on the Hon’ble Supreme Court’s judgment in MIL India Ltd. v. CCE, Noida 2007 (210) E.L.T. 188 (SC) wherein it was held that the power of remand by the Commissioner (Appeals) had been taken away by Parliament by amending Section 35A of the Central Excise Act with effect from 11.5.2011. The learned Additional Commissioner (AR) has reiterated the above ground of this appeal. The learned counsel for the appellant submits that the appellate Commissioner’s order cannot be said to be an order of remand inasmuch as a finding was rendered on the substantive issue by the appellate authority and the matter was sent back to the lower authority for the limited purpose of quantification of the amount for refund.
2. After considering the submissions, we have found substance in the submission made by the learned counsel. The respondent had claimed refund of unutilized CENVAT credit of the service tax paid on numerous input services which were used for export of their output service viz. Information Technology Support Service. The refund claim was filed under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 5/2006-ST Dt. 01.3.2006. The original authority sanctioned refund of the service tax paid on some of the input services which were found to have nexus with the output service. In respect of the remaining input services, refund was declined by that authority having found no such nexus. Against this rejection of refund claim, the assessee approached the Commissioner (Appeals) and the latter found nexus between the input services (barring Air Travel Agency Service) and the output service exported by the party. Accordingly the matter was sent back to the original authority for quantification of the amount for refund in respect of the input services which were found to have nexus with the output service. Obviously, this was not a remand. The sole ground raised by the Revenue is untenable and therefore the appeal gets dismissed along with stay application.