Analog Devices India Pvt Ltd vs Commissioner Of Service Tax ...

[Arising out of Order-in-Appeal No. 268-2011 dated 31/03/2011 passed by CCE(Appeals-II), Bangalore]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

ANALOG DEVICES INDIA PVT LTD 601 & 602, 6TH FLOOR, TOWER-D, RMZ INFINITY OLD MADRAS ROAD, BANGALORE 560 016 Appellant(s)

Versus

Commissioner of Service Tax BANGALORE-SERVICE TAX NULL 1ST TO 5TH FLOOR, TTMC BUILDING,above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)

Appearance:

Ms. RUKMANI MENON, Advocate For the Appellant

Shri N. Jagdish, Superintendent(AR) For the Respondent

Date of Hearing: 28/07/2015

Date of Decision: 28/07/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER

Final Order No. 21715 / 2015

Per : ARCHANA WADHWA

After hearing both the sides, we find that the issue relates to the appellants claim of refund of accumulated CENVAT credit, in terms of the provisions of Rule 5 of CENVAT Credit Rules.

2. The said claim stands rejected by the lower authorities on the ground that the appellants final output service should be classified as Information Technology Service which was not liable to tax at all, at that point of time. The appellants grievance is that the said reason was never stated in the show-cause notice and as such they never had an opportunity to put forth their defence in respect of the same. In fact the services being provided by the appellant fell correctly under the correct category of Business Auxiliary Service or Consulting Engineering Service.

3. Further the lower authorities have rejected part of the refund claim on the point of time-bar. Learned advocate bring to our notice that even the said ground for rejection of refund on the point of limitation was also never disclosed in the show-cause notice and as such the adjudicating authority has travelled beyond the scope of the notice. In any case, she submits that had they been given an opportunity to contest the said issue, they would have established that the claim stands filed within the period of limitation inasmuch as they have documentary evidences to that effect, in their custody.

4. Learned AR appearing for the Revenue agrees for the remand of the matter to the original adjudicating authority to consider all the issues afresh.

5. Accordingly we set aside the impugned order and remand the matter to the original adjudicating authority. Needless to say that the appellants are at liberty to place reliance on the precedent decisions of the Tribunal, in support of their claim. The appeal is thus allowed by way of remand.

(Order pronounced and dictated in open court)

ASHOK KUMAR ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

Raja..

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