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TMI Blog2017 (4) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. 2. On behalf of the department, the Ld. AR Sh. Nagraj Naik submitted that the department is aggrieved on four grounds. Firstly, 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-TIOL-1836-CESTAT-Bang]. 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. 3. The second contention put forward by department is that the respondent/assessee has paid the service tax on various services under reverse charge mechanism. That this service tax was paid with much delay after be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding refund as ineligible. That the Commissioner (Appeals) has erred in taking such view for the reason that while allowing refund, the nexus of the input services with the output services also has to be established. 6. The Ld. AR thus submitted that the Commissioner (Appeals) has wrongly held the respondents to be eligible for credit/refund, and the remand of the matter is also not proper. 7. Against this, the Ld. Counsel Sh. S. Thirumalai submitted that the Commissioner (Appeals) has analysed the facts, and evidence in the case in detail and held that the services are eligible for credit/refund. In respect of the credit taken on the service tax which was paid belatedly under reverse charge mechanism, the Ld. Counsel relied upon the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n though the Commissioner (Appeals) has made discussions about the said interim order, he has held the credit to be admissible not solely basing upon this interim order. 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 cited (supra). 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. 9. The second ground raised by the Ld. AR is that the appellant is not eligible to take credit of the service tax which was paid belatedly under reverse charge mechanism, for two reasons: Firstly, that such service tax does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rminated from the wordings used in the provisions of the notification or interpretation of such provisions, other issues were more in the nature of administrative difficulties in operating the scheme. As an immediate measure, CBEC issued a clarificatory circular No.120/01/2010-ST., dated 19.01.2010. It was however felt that a permanent solution would require supplementing the clarification with certain amendments to the notification, part of which had to be retrospective in nature. Accordingly, Notification No. 5/2006-CE (NT) has been amended vide Notification No. 7/2010-CE(NT), dated 27th February, 2010. This mainly deals with the procedure that needs to be adopted in case o the new refund claims. However, to resolve the disputes arising o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (a) of the Notification. 2) The word in contained in main condition (b) of the said Notification has been replaced with for . The above two changes ensure that the provisions of the refund notification and the CENVAT Credit Rules are aligned and that refund is granted on all goods or services on which CENVAT can be claimed by the exporter of goods or services. 3) The illustration given in condition 5 of the Appendix to the Notification has been deleted. This ensures that refund of CENVAT credit which has been availed in the period prior to the quarter/period for which the refund has been claimed is also eligible for refund. The refund claims should be calculated only on the basis of the ratio of the export turnover to the total tur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Commissioner (Appeals), I am in full agreement with the view taken by him. Section 73(4A) does not make any mention about fraud, suppression of facts or wilful misstatement. The department cannot read words into the provisions of statute. 12. The last ground raised by the Department is that the Commissioner (Appeals) has not given any specific directions while remanding the matter to the adjudicating authority. I cannot agree with the argument put forward by the Ld. AR in this regard. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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