TaxTMI 
TaxTMI 
2009 (7) TMI 152
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....dent is a 100% EOU engaged in the manufacture of excisable goods. They have filed refund claims of Rs. 55,722/- for the period July, 2006 to September, 2006 in respect of accumulated and unutilized Cenvat credit of Service Tax paid on commission disbursed for the sales activities of the finished goods. The said refund claim was rejected by Assistant Commissioner on the ground that in terms of Rule 5 of Cenvat Credit Rules, 2002, read with Notification No. 5/06-C.E. (N.T.), dated 14-3-06, the credit of input services should be in respect of those services used for the manufacture of the final product. Inasmuch as the said service is for sale of final product, the benefit of the credit in terms of Rule 5 would not be admissible. On an appeal,....
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..... Even if the issue is one of law, but if it calls for adducing additional evidence, and requires examination of factual position, other than the one examined at the adjudicating stage, the same cannot be raised at the appellate stage." 3.2 In the present case the issue involved is whether the input service credit earned by the respondents on various services like agency services, commission agent services, CHA services, packing and forwarding services which have been used by the Respondents after clearance of the goods from the factory, are covered by the definition of input service as given under Rule 2(1) of Cenvat Credit Rules, 2004. It is absolutely necessary that these services are covered in the definition of input services as given....
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....d qualifies as input services. In the present case, the input service involving services like agency services, commission agent services, CHA services, lacking and forwarding services used by the respondents have been so used somewhere else in or in around port area after clearance of the goods from the factory [which the place of removal in terms of Section 4(3)(c) of Central Excise Act, 1944] and not used within the factory in the manufacture of final product, the place of removal. So the subject services have been used by the Respondents not up to the place of removal i.e. within the factory of in the manufacture of final product but after the place of removal which the Commissioner (Appeals) should have taken into consideration. 3.5 In....
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....oner (Appeals) is not acceptable on the ground that if the logic given by him is accepted the very purpose of provisions for review of orders of the lower authorities would be defeated. The whole idea behind examining the legality and propriety of the orders at the time of review is to check whether the order is as per the law and has been taken into consideration all facts and circumstances and evidences available on record. If any major lapse point of the law point is noticed, as in this case, that itself can become a ground for review. It is quite obvious that while examining the orders of lower authorities in review, such lapses would be noticed and pointed out in the appeal memorandum, but that would not amount to raising new issues or....