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2015 (9) TMI 1278 - CESTAT NEW DELHI

2015 (9) TMI 1278 - CESTAT NEW DELHI - TMI - Denial of refund claim - Business Auxiliary Service - Rule 5 of Cenvat Credit Rules, 2004 read with Notification No.5/2006-CE (NT) dated 14.3.2006 - Refund of unutilized cenvat credit - appeal preferred without approval of the Committee of Commissioners - Held that:- As is evident from sub-section (2) of Section 35B, appeal against the order of Commissioner (Appeals) is to be filed on the recommendation of Committee of Commissioners. In the judgment o .....

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ues appeal - Decided against Revenue. - Service Tax Appeal No.170 of 2009 - Final Order No. 52859 - Dated:- 10-9-2015 - Mr. G. Raghuram, President and Mr. R.K. Singh, Technical Member, JJ. For the Petitioner : Shri Amresh Jain, A.R. For the Respondent : Shri Tarun Gulati, Advocate with Shri Shashi Mathew and Ankit Sachdeva, Advocates ORDER Per R.K. Singh: Revenue is in appeal against order in-appeal dated 30.9.2010 which set aside the order-in-original dated 3.10.2007 which had rejected the ref .....

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(NT) dated 14.3.2006 to enable the refund of unutilized cenvat credit to manufacturers and service providers and prior to 14.3.2006 it was applicable only to manufacturer to claim refund of untilised cenvat credit. The primary adjudicating authority observed that the period of refund claim was April 2005 which was prior to issue of said notification and as the respondent was a service provider it was not entitled to refund. The Commissioner (Appeals) vide impugned order, on the basis of CESTAT .....

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ld. Commissioner (Appeals) has erred in allowing the benefit of Rule 5 of Cenvat Credit Rule 2004 as amended vide Notification No.04/2006-CE(NT) dated 14.3.2006 to the provider of output service before 14.3.2006 as amended Rule 5 of Cenvat Credit Rules, 2004 is not applicable to the refund emanating from the export made prior to 14.3.2006. 4. In its cross-objection and during the hearing, the respondent stated that - (i) the appeal was filed without being recommended by the Committee of Commiss .....

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s been preferred without approval of the Committee of Commissioners, Section 35B of the Central Excise Act, 1944 made applicable to service tax vide Section 83 of the Finance Act, 1994 reads as under: SECTION 35B. Appeals to the Appellate Tribunal. (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order (a) a decision or order passed by the [Principal Commissioner of Central Excise or Commissioner of Central Excise] as an adjudicating autho .....

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ith such appeal or matter under section 35EE as if such appeal or matter were an application or a matter arising out of an application made to it under that section. (1B) (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may, [by order], constitute such Committees as may be necessary for the purposes of this Act. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Comm .....

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] to the Appellate Tribunal against such order. Provided that where the Committee of Commissioners of Central Excise differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional [Principal Chief Commissioner of Central Excise or Chief Commissioner of Central Excise] who shall, after considering the facts of the order, if is of the opinion that the order passed by the .....

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