TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 697
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.... refund claim in respect of such input service under Notification No. 9/2009-S.T. as amended by Notification No. 15/2009-S.T., dated 20-5-2009. The adjudicating authority sanctioned the refund claim partly while rejecting the major part. Being aggrieved by the order-in-original, the appellant filed appeal before the Commissioner (Appeals), who vide impugned order disallowed the refund of service tax on some of the services, allowed the refund of service tax on some of the services and allowed the refund of service tax on some of services by way of remand to adjudicating authority. Being aggrieved by the impugned order the revenue filed this appeal to the extent of allowing appeal by way of remand as well as allowing refund claim amount. 02. Shri J.A.Patel, Learned Superintendent (Authorized Representative) appearing on behalf of the appellant reiterates the grounds of appeal filed by the revenue. The learned AR would draw our attention to the amended provisions of Section 35(A) of the Central Excise Act, 1944 w.e.f. 11.05.2001. The new section read as "Commissioner (Appeals) shall, after making such further enquiry as may be necessary, pass such order, as he thinks just and proper....
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....on No. 09/2009-ST dated 03.03.2009 as amended by Notification No. 15/2009-ST dated 20.05.2009. The said services were approved by the approval committee vide letter dated 20.06.2009. The respondent had again applied for the additional services on 14.10.2011, which were approved. The Commissioner (Appeals) has observed that now the services provided by the service providers are included in the approval list, the delay is of procedure infraction for which substantial benefit of refund cannot be denied as has allowed the refund. The specified services in dispute were approved by the approval committee on 24.05.2012 only whereas the refund claim pertains to January 2011 to February 2011. The conditions of the Notification are to be strictly followed. The Commissioner (Appeals) has erred in as much as he has considered the issue as procedural lapse. 2.2 He further submits that Learned Commissioner (Appeals) has erred while allowing the refund in respect of services viz., training the staff. The claimant has claimed the refund under the category 'Chartered Accountancy Services'. The above services are not in the nature of said service, but can appropriately be classified under 'Commerci....
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....nts Services". It is settled law that classification of service cannot be doubted at the end of service recipient. As regard the repair service, he submits that merely sending the material outside for repair, does not mean that services has not been consumed with SEZ. As regard the ground of Appellant that refund cannot be allowed on procedural lapse, he submits that it is admitted facts that services had been used in relation to authorised activity, hence Ld. Commissioner (Appeals) rightly granted refund. 04. We have carefully considered the submissions made by both the sides and perused the records.The grievance of the Revenue in the present appeal is twofold : (i) that the Commissioner (Appeals) has erred in remanding the matter back to the lower authorities even though the Commissioner (Appeals) has got no power to remand the case to the lower authority after the amendment made in the relevant Section w.e.f.11.05.2001 statute did not confer any power of remand upon the Commissioner (Appeals). (ii) that the Commissioner (Appeals) has erred by allowing the refund of Service tax on services which were not specified services for authorised operations. 4.1 As regard the questi....
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....tioned in the part (D) of discussion and finding of impugned OIA cannot be regarded as amounting to a remand. In the present case, the directions given by the Commissioner (Appeals) for re-verifying a few aspects related to refund cannot be considered as amounting to a remand to the lower authority. These directions should have amounted to remand, if any, of the issues in dispute had been left unresolved by the Commissioner (Appeals) and sent back to the lower authority for a fresh decision or adjudication. This has not happened in the present case as all the issues raised by the Lower Authority in the adjudication order have been decided conclusively by the Commissioner (Appeals) as is evident from impugned Order-In-Appeal. In these circumstances, we do not find any merit in the Revenue's appeal in this regard. 4.4 As regard the second issue, we note that Learned Commissioner (Appeals) has given his finding on all the issues involved and for the sake of ready reference, we reproduce the relevant paragraphs from the impugned order-in-appeal below: - " I find that all such services which are approved as specified service by the approval committee are considered as related to the ....
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....ppellant for which the substantive benefit of refund cannot be denied to them" 4.5 We find that there is no dispute in the present matter that the said services have been used by the respondent for authorized operation in the SEZ. Further, we find that not mentioning the said services in the Approved List is only a technical defect and it should not debar the substantive benefit to the assessee who has utilized those services for carrying out authorized operation. we also note that disputed input services have been subsequently approved by the Committee in the approval List of services. This issue has been considered by the Tribunal in number of cases and in the case of Commissioner of Central Excise Mangalore Commissionerate v. Mangalore SEZ Ltd.2017 (49) S.T.R. 311 (Tri. - Bang.) supra, the CESTAT has held as under : "The Government's intention is clear that the SEZ units should either not require to pay or if paid they are eligible for refund. Mere not mentioning the services in Annexures II & III is only a technical one which should not debar the substantial benefit. In this case, it is clear that the appellant who had availed the services inside the SEZ were not liable to p....
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....of services consumed wholly within the SEZ, from seeking refund of Service Tax remitted on such transactions, by the providers of such services." The said decision of Intas Pharma has been followed by the CESTAT Mumbai in the case of Reliance Industries Ltd. v. CCE, Mumbai-I-,2016 (41) S.T.R. 465 (Tri. - Mumbai) 4.6 In view of various decisions cited supra squarely covering the issue in favour of the respondent, we therefore find no merit in Revenue's argument. 4.7 As regard the refund in respect of 'Chartered Accountancy Service' the Learned Commissioner (Appeals) in his order observed that service provider registered with the service tax department under 'Chartered Accountancy Service' and they raised the bills under the said category which is approved service in specified list for authorized operation in SEZ, hence refund is allowable. The contention of Revenue that the said service provided by Chartered Accountant does not fall under the category of "Chartered Accountants Service", cannot be doubted at the end of service recipient and benefit of refund cannot be denied on this ground to the respondent. 4.8 The Revenue disputed the refund on repair service on the ground that....