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2025 (5) TMI 1225 - AT - Service TaxInput stage refund of various services provided for export of goods under Notification No. 41/2012-ST dated 29th June 2012 - rejection of refund on the ground that the services had not been used beyond factory vide Order-In-Original dated 23rd October 2017. Against the Order-in-Original the appellant preferred an appeal to the Commissioner - HELD THAT - The Learned Commissioner has erred in passing the impugned order and the impugned order is not sustainable. The Learned Counsel for the appellant is agreed upon that in the Order-In-Original it has not been mentioned by the Adjudicating Authority that the applicant / appellant has not produced the copy of the invoice. If at all the appellant has not produced the copy of the invoice before the Adjudicating Authority; then this fact must have been mentioned in the Order-In-Original. Further it is also agreed with the Learned Counsel for the appellant that no refund application can be processed if copy of the invoice has not been submitted and a refund application without a copy of the invoice will be returned to the applicant outrightly. Here it has not happened. The learned commissioner could have called for the copy of the invoice from the learned Adjudicating Authority or the appellant himself but it was not done. Therefore the impugned order passed by the Learned Commissioner is not sustainable and is liable to be set aside. Conclusion - In the facts of the case it appears proper if the matter is remanded back to the Commissioner with the direction to give opportunity to the appellant to submit a copy of the said invoice and thereafter pass a suitable order on the refund application due to non appraisal of required facts. Appeal allowed by way of remand.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered in this appeal are: (a) Whether the refund claim of the appellant for the amount of Rs. 1,01,199/- can be rejected on the ground that the invoice (Invoice No. 10 dated 10th January, 2017) was not produced by the appellant before the Commissioner (Appeals), despite the invoice being annexed with the appeal memo and submitted with the refund application. (b) Whether the Commissioner (Appeals) was justified in rejecting the refund claim on a ground not raised in the original show cause notice or Order-In-Original, specifically the non-production of invoice, thereby exceeding the scope of the adjudication. (c) Whether the appellant's refund application could have been processed without production of the invoice and if the Commissioner (Appeals) ought to have sought the invoice from the appellant or the Adjudicating Authority before rejecting the claim. (d) Whether the refund claim rejection on the ground that the services were provided at the factory site and not beyond the factory, as per condition (I) of Notification No. 41/2012-ST, was sustainable. 2. ISSUE-WISE DETAILED ANALYSIS Issue (a) and (b): Production and non-production of invoice and scope of adjudication The relevant legal framework involves the procedural requirements for claiming refund under Notification No. 41/2012-ST, which mandates submission of invoices evidencing payment of service tax on inputs used for export of goods. The appellant, a manufacturer and exporter of Calcine Bauxite, filed refund applications with requisite invoices including Invoice No. 10 dated 10th January, 2017. The Adjudicating Authority in the Order-In-Original dated 23rd October, 2017, explicitly noted that invoices issued by M/s Titan Enterprise were produced and considered. There was no finding or observation that the appellant failed to produce the invoice in question. The show cause notice issued focused solely on the issue of whether the services were used beyond the factory premises, as per the notification's condition. However, the Commissioner (Appeals), in the impugned order dated 30th October, 2018, rejected the refund claim partly on the ground that the appellant had not produced Invoice No. 10, a ground not raised in the original show cause notice or Order-In-Original. The appellant argued that the invoice was annexed with the appeal memo and was part of the original refund application, thus the Commissioner's rejection on this new ground was beyond the scope of the adjudication and hence unsustainable. The Court concurred with the appellant's submissions, holding that the Commissioner (Appeals) erred in travelling beyond the scope of the show cause notice and Order-In-Original. The Court emphasized that if the invoice was indeed missing, the Commissioner should have called for the invoice either from the appellant or the Adjudicating Authority before rejecting the claim, rather than rejecting it arbitrarily. The Court noted that no refund application is processed without submission of the invoice, and if the invoice were genuinely missing, the refund application would have been returned outrightly at the initial stage, which was not the case here. Thus, the Court found the rejection of refund on the ground of non-production of invoice to be unjustified and unsustainable. Issue (c): Procedural propriety in handling missing documents The Court examined procedural norms regarding missing documents in refund claims. It was recognized that the invoice is a critical document for processing refund claims under service tax law. The Court observed that the Adjudicating Authority had the invoice on record and had not raised any issue about its non-production. The Commissioner (Appeals) could have sought the invoice from the Adjudicating Authority or the appellant before passing the impugned order. The Court held that the Commissioner's failure to do so amounted to procedural impropriety and arbitrariness. The appellant's right to be heard and opportunity to produce documents were not adequately afforded. Hence, the Court directed that the matter be remanded to the Commissioner (Appeals) with directions to provide the appellant an opportunity to produce the invoice and to decide the refund claim afresh in accordance with law. Issue (d): Refund rejection on ground of services used only at factory site The Adjudicating Authority had rejected part of the refund claim on the ground that the services for which refund was claimed were provided at the factory site and were not used beyond the factory or premises of production/manufacture of goods, which is a condition stipulated under Notification No. 41/2012-ST for refund eligibility. The Court did not specifically overturn this finding but focused primarily on the procedural and evidentiary aspects related to the invoice production and scope of adjudication by the Commissioner (Appeals). The remand order implied that the Commissioner (Appeals) should also consider all relevant facts and submissions afresh, including the issue of use of services beyond the factory premises, if raised, after giving due opportunity to the appellant. 3. SIGNIFICANT HOLDINGS "The Learned Commissioner has erred in passing the impugned order and the impugned order is not sustainable. I agree with the Learned Counsel for the appellant that in the Order-In-Original, it has not been mentioned by the Adjudicating Authority that the applicant / appellant has not produced the copy of the invoice." "No refund application can be processed, if copy of the invoice has not been submitted, and a refund application without a copy of the invoice will be returned to the applicant outrightly." "The learned commissioner could have called for the copy of the invoice from the learned Adjudicating Authority or the appellant himself, but it was not done. Therefore, the impugned order passed by the Learned Commissioner is not sustainable and is liable to be set aside." "The matter is remanded back to the learned commissioner (Appeals) with the direction to get opportunity to the appellant to submit original invoice found missing and pass suitable orders thereon and decide the matter afresh, preferably within three months, because the matter is very old." Core principles established include:
Final determinations: The Tribunal allowed the appeal, set aside the impugned order rejecting the refund claim of Rs. 1,01,199/-, and remanded the matter to the Commissioner (Appeals) with directions to provide the appellant an opportunity to produce the missing invoice and decide the refund claim afresh in accordance with law within a specified timeframe.
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