TMI Blog2011 (9) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... ategorical. The respondent is not in appeal. However in respect of other services, the finding of the Commissioner is not categorical. Therefore, his remitting the matter to the original authority is in the nature of remand which is not proper - Commissioner (Appeals) has no power of remand (2007 - TMI - 1196 - SUPREME COURT OF INDIA) - However the re-examination of the claim in respect of other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayer of the department for the stay of the order of the Commissioner (Appeals) and proceed to be decide the appeal finally. 3. Original authority rejected the refund claim filed by the assessee under Rule 5 of the Cenvat Credit Rules, 2004 for unutilized Cenvat credit relating to the period January to March 2008. On appeal by the party, the Commissioner (Appeals) has held that in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in the case of MIL India Ltd. reported in 2007 (210) ELT 188 (SC). He also submits that the chartered accountant certificate cannot be the basis for establishing the nexus. 5. Learned advocate relying on the Board's Circular dated 19.01.2010, submits that once the service is treated as input services for the purpose of allowing cenvat credit in terms of Rule 3 of the Cenvat Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of other services, the finding of the Commissioner is not categorical. Therefore, his remitting the matter to the original authority is in the nature of remand which is not proper, as submitted by learned JCDR, in the light of judgment of the Hon'ble Supreme Court in the case of MIL India cited supra. However the re-examination of the claim in respect of other services deserves to be done ..... X X X X Extracts X X X X X X X X Extracts X X X X
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