Cst Bangalore vs Dover India Pvt Ltd
- CitationAppeal No. 213-217-2011
Ratio decidendi
The rule this decision rests on
Where a refund claim turns on quantification and sanction, which the original adjudicating authority must carry out, the appellate authority may remand the matter to that authority; the Tribunal's consistent practice is to do so in such cases, and the remand is confined to the original authority completing the refund determination. Where the Revenue appeals against an appellate authority's decision on eligibility for refund, the remand to the original authority is accompanied by a direction that the claimant file service-wise written submissions explaining how each service was utilised and why it falls within the definition of input service, and that the original authority determine whether the conditions of Notification No. 5/2006 are fulfilled, following any judicial precedents cited before it.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
ST/1887/2011-SM, ST/1888/2011-SM, ST/1889/2011-SM, ST/1890/2011-SM, ST/1891/2011-SM
[Arising out of Order-in-Appeal No. 213-217-2011 dated 23/03/2011 passed by CCE(Appeals), Bangalore]
For approval and signature:
HON'BLE SHRI B.S.V.MURTHY, 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?
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?
4 Whether Order is to be circulated to the Departmental authorities?
CST BANGALORE NO. 16/1, S.P. COMPLEX, LALBAGH ROAD, Appellant(s)
Versus
DOVER INDIA PVT LTD NULL Respondent(s)
Appearance:
Dr. A.K. Nigam, Addl. Commissioner(AR) For the Appellant
None For the Respondent
Date of Hearing: 10/03/2015
Date of Decision: 10/03/2015
CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 20657-20661 / 2015
Per : B.S.V. MURTHY
None appeared on behalf of the respondents. Heard the learned AR for the Revenue.
2. In all the 5 appeals, the issue involved is common and therefore all the appeals are taken together and a common order is being passed.
3. The Commissioner(Appeals) has remanded the matter to the original adjudicating authority after taking decision in respect of certain services about their eligibility for refund. In other cases, he has observed that original authority may consider the documents and come to a conclusion. Revenue is aggrieved by the fact that Commissioner has decided the eligibility in respect of certain services without having documents and he has exercised the powers of remand.
4. I have considered the submissions. In cases where the appeals have been filed by the Revenue on the ground that the Commissioner has no power and the issue involved is consideration of refund claims, this Tribunal has been consistently remanding the matter to the original authority since ultimately quantification and sanction of refund and payment has to be made by the original authority. Therefore as regards remand, matter has to be remanded to the original authority. As regards eligibility, since Revenue is in appeal, in my opinion, it would be appropriate for the respondents to file service-wise written submissions explaining how the services were utilised and how they can be considered for having been included in the definition of input service about their eligibility. Further the original authority also may proceed to consider as to whether appellants have fulfilled all the conditions prescribed in the Notification No.5/2006. Needless to say the original authority shall consider and follow judicial precedents which may be cited by the respondents before him before coming to a final conclusion. Respondents shall file their written submissions with all the details required before the original authority expeditiously (not more than 3 months). The appeals are decided in above terms.
(Order pronounced and dictated in open court)
B.S.V.MURTHY TECHNICAL MEMBER
Raja 3
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