TMI Blog2018 (1) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... authority and due notice should have been given to the appellants on the ground of rejection - appeal allowed by way of remand. - E/86018, 86024, 86172/16 - A/91375-91377/2017 - Dated:- 5-12-2017 - Shri Raju, Member (Technical) S/Shri Sathe And Avinash R. Sadhu, Advocate for the appellant Shri V.K. Agarwal, ADC (AR) for the respondent ORDER These three appeals have been filed by Royal Foodstuffs Pvt. Ltd. against rejection of their refund claim under Rule 5 of the Cenvat Credit Rules: 2. Ld. Counsel for the appellants argued that they are engaged in manufacture and export of non-excisable products. During the export process they utilised the services of CHA and Warehouse service. They also pay service tax on man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down at Sra No.2.0 (h) of the notification 27/2012-C.E.(NT) dated 18.06.2012. 3. He pointed that the Order-in-Original confirmed the show-cause notice. He argued that they challenged the Order-in-Original before the Commissioner (Appeals) who upheld the order on following two grounds:- 1) Whether the appellants, who pays service tax under reverse charge mechanism (a recipient of taxable service but liable to pay duty in terms of provisions of section 68(2) of the Finance Act, 1994) can also be called 'output service provider'? 2) Whether manufacturer of goods having 'nil' tariff rate of duty, is eligible for CENVAT credit at all? 4. He further argued that since they pay service tax on reverse charge mechani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding also holds that the issue is not to be examined with reference to Rule 5B but with reference to Rule 5. It is seen that the last sub-para of para 3 mentions that the appellants have contended that they have not sought refund under Rule 5B but under Rule 5 of Cenvat Credit Rules. If that argument of the appellants is to be accepted, the matter should have been remanded to the original adjudicating authority and due notice should have been given to the appellants on the ground of rejection. In these circumstances it is not open to the Commissioner (Appeals) to go beyond Rule 5 especially when Rule specifically ruled out in Order-in-original. The Order-in-original has observed as follows:- they also discussed the provisions of not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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