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2017 (4) TMI 997 - AT - Service TaxCENVAT credit - input services - case of Department is that the Commissioner (Appeals) has relied upon the judgment passed in the case of M/s Kyocera Wireless (I) Pvt. Ltd Vs Commissioner of S. Tax, Bangalore in [2014 (9) TMI 1036 - CESTAT BANGALORE]. The said order is only an interim order passed by the Tribunal and does not have any precedent value and therefore Commissioner (Appeals) ought not to have relied upon such interim order to allow the credit/refund - Held that: - All the said services have been held to be eligible for credit by various judgments of the Tribunal including the Final Order of this Tribunal. Further, the Commissioner (Appeals) has only remanded the matter for reconsideration by the adjudicating authority. Therefore, I hold this ground put forward by the Department as unacceptable. CENVAT credit - denial on the ground that service tax was paid with much delay after being pointed out in audit - Held that: - the respondent/assessee is not barred from taking credit in terms of Rule 9(1)(bb) for the reason that Rule 9(1)(bb) bars the availment of credit when the service tax is paid pursuant to the notice issued alleging fraud, suppression of facts and wilful misstatement - credit allowed. Validity of remand order - Although the Commissioner (Appeals) remanded the matter to adjudicating authority for reconsideration of the issue of eligibility of credit, there is no specific direction made for the remand - Held that: - The Commissioner (Appeals) has given detailed discussion of the issues, facts as well as the law relating to them and thereafter has arrived at the conclusion that respondents are eligible for credit/refund. He has remanded the matter only for the limited purpose of verifying and granting the refund. Sub-section (4) of Section 85 does not limit the powers of the Commissioner (Appeals) to remand a matter. Appeal dismissed - decided against Revenue.
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