TMI Blog2023 (3) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... to refund as the services provided by it was as an intermediary. It is, thus, clear that the impugned order has been passed in violation of the principles of natural justice. It is considered apposite to set aside the impugned order and matter remanded to the Appellate Authority to decide the petitioner s appeal afresh, including the question as to whether the Appellate Authority has the jurisdiction to set up a new case against the assessee, which was not a subject matter of either the show cause notice or the enquiry before the Adjudicating Authority. The appeal filed by the petitioner is restored before the Appellate Authority. The Appellate Authority is directed to decide the petitioner s appeal afresh in accordance with law after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had sought a refund of ₹13,10,508/- paid on the export of services for the period of April 2020. The petitioner s application dated 31.05.2021 was accepted on 01.06.2021 without issuing the deficiency memo. Thereafter, the Adjudicating Authority issued a show cause notice dated 20.07.2021 proposing to deny refund of Integrated Tax to the petitioner on the ground that the petitioner and the service recipient(s) were not distinct persons. 5. The petitioner responded to the said show cause notice disputing the assumption that the petitioner and the overseas service recipient were not separate tax entities. However, the petitioner s contention was not accepted by the Adjudicating Authority and its application for refund of Integra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. It is the petitioner s case that it was not open for the Appellate Authority to suo moto set up a new case on behalf of the Revenue and proceed to adjudicate the same. The petitioner contends that the powers of the Appellate Authority under Section 107 of the CGST Act does not extend to the said extent. In terms of Section 107(11) of the CGST Act, the Appellate Authority has the power to make such an inquiry as it considers necessary and pass such orders as it thinks just and proper including confirming, modifying or annulling the decision appealed against; however the power of modifying the order appealed against does not extend to setting up a new case altogether. The petitioner also contends that in terms of the second proviso to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termediary. However, Mr Ghosh submitted that since the said case was never projected by the Revenue, the petitioner had no opportunity to address the same at any stage. The ground on which the Appellate Authority had denied the refund that is, the petitioner is an intermediary was neither a part of the show cause notice nor projected as a subject matter before the Appellate Authority at any stage. 12. We have heard the learned counsel for the parties. 13. There is no cavil with the finding of the Appellate Authority that Condition (v) of Section 2(6) of the CGST Act is satisfied. The respondents have not preferred any appeal against the order of the Appellate Authority. Further, the learned counsel for the respondents has also not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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