Commissioner Of Service Tax, Chennai vs M/S. Atheros India Llc

Customs Excise and Service Tax Appellate Tribunal16 September 2015

CitationAppeal No. 203 & 204/2013 (M-ST) dated 25.7.2013 passed by the Commissioner of Central Exci

Ratio decidendi

The rule this decision rests on

The principle that refund of service tax is admissible in respect of a period prior to the claimant's registration, as the law on that point is settled. Where an adjudicating or appellate authority has not addressed a ground raised by the Revenue, including an allegation of time-bar in the show-cause notice and the admissibility of CENVAT credit claimed, the appellate authority must examine those matters before deciding the refund claim, and an order passed without considering them is liable to be remanded for fresh consideration after affording the claimant a reasonable opportunity of hearing.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE & SERVICE TAXAPPELLATE TRIBUNALSOUTH ZONAL BENCH, CHENNAIAppeal Nos. ST/42331 & 42332/2013

(Arising out of Order-in-Appeal No. 203 & 204/2013 (M-ST) dated 25.7.2013 passed by the Commissioner of Central Excise (Appeals), Chennai)

Commissioner of Service Tax, Chennai Appellant

Vs.

M/s. Atheros India LLC Respondent

Appearance

Shri B. Balamurugan, AC (AR), for the Appellant None for the Respondent

CORAM

Honble Shri D.N. Panda, Judicial Member

Date of Hearing / Decision: 16.09.2015

Final Order No. 41214-41215 / 2015

None present for Respondent. Revenue submits that the order of the learned Commissioner (Appeals) suffers from legal infirmity on three counts. (i) No refund shall be admissible in respect of the period prior to registration, (ii) the application for refund being time-barred is not entertainable and (iii) when there were inadmissible claim of CENVAT credit, grant thereof shall cause injury to Revenue. All these have come out in para 17 of the adjudication order as well as ground 1 of the review order by the committee.

2. So far as prior registration claim is concerned, law is settled that refund shall be admissible as has been rightly applied by learned Commissioner (Appeals) in para 6 of his order. The inadmissible claim of CENVAT credit was not addressed by Commissioner (Appeals). That needs addressing. It appears that learned AR is correct to bring out that the order of the Commissioner (Appeals) is mechanically passed.

3. So far as time bar is concerned, although it does not come out patently from order, it appears that the show-cause notice has allegation in that regard. When such allegation existed, Commissioner (Appeals) should look into that. Admissibility of certain CENVAT credit is also not addressed by Commissioner (Appeals) in his order. That needs to be redressed.

4. Respondent not being present today, in all fairness, matter is remanded to Commissioner (Appeals) to carefully examine the show-cause notice, dispute arising out of the adjudication order as well as the reasons stated by review committee and affording reasonable opportunity of hearing to the respondent shall pass appropriate order

5. In the result both the appeals are disposed with the aforesaid direction.

(Dictated and pronounced in open court)

(D.N. Panda) Judicial Member Rex

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