2011 (11) TMI 303

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....OD is disposed of as infructuous. 2. Heard both sides on the stay petition. Considering the nature of issue, I deem it appropriate to dispose of the appeal finally and therefore, the stay petition is also treated as disposed of. 3. The relevant facts of the case, in brief, are that the respondent is a 100% E.O.U. registered under the category of 'Business Auxiliary Service' and are rendering 'Business Auxiliary Service' and 'Computer Net Working Service'. They claimed refund of unutilized CENVAT credit amounting to Rs. 5,78,260/- relating to the period from April 2008 to September 2008 and the same was rejected by the original authority on the ground that they were not registered for rendering the 'Business Auxiliary Service' but regi....

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.... that similar disputes arose earlier  before this Bench and this Bench in the appellant's own case reported in 2011 (23) S.T.R. 25 (Tri.-Bang.) held that similar services utilized by them are input services having nexus with the services exported by them. 7. I have carefully considered the submissions from both sides and perused the records. The Commissioner (Appeals) has given categorical findings regarding the nexus between services claimed as input services and the services rendered by the respondent. The relevant portion of the order is reproduced below :- "With regard to the nexus between input service & output service, my findings are given below for the input services as to their essentially for the output service. Band....

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....ployee's remuneration. Renting of immovable property service : This service is utilized is essential for the output service. This service is eligible for refund, restricted to register premises only, ie, excluding for car parking/cafeteria as it is not a part of the output service." In other words, the Commissioner (Appeals) has given categorical findings on the nexus issue. His remitting the matter to the original authority obviously is to see the correctness of the amount claimed by the respondent as refund and the original authority is not expected or required to go into merits of the case. In these circumstances, the order of the Commissioner (Appeals) cannot be treated as an order of remand. Therefore, the grounds taken by the de....