TMI Blog2023 (9) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... I [ 2016 (11) TMI 1746 - CESTAT CHENNAI ], directing him to examine such evidence and pleadings, if any, both on facts and law as well as apply proper law and pass a reasonable and speaking order. The Tribunal being the final fact-finding authority, the direction to apply proper law would entail the original authority examining the refund claim in the light of the proper Notification which is brought to his notice by the appellant during the remand proceedings. Prima facie, the Revenue is questioning the eligibility of the appellant-assessee for refund / rebate under Notification No. 41/2012 ibid. Further, as per the Revenue s grounds of appeal, the assessee had in fact made a claim under Notification No. 41/2012 which was rejected i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that the said claims for refund came to be rejected vide Orders-in-Original dated 28.05.2015, apparently on the ground of non-jurisdiction, non-submission of documents, etc. It appears that the appellant preferred an appeal before the first appellate authority who also confirmed the rejection of their claims, against which it appears that they filed appeals before this Bench. Upon hearing both the parties, this bench by its Final Order No. 41863 of 2016 dated 06.10.2016 and Final Order Nos. 42243 to 42245 of 2016 dated 15.11.2016, felt it proper to set aside the impugned orders and thereby remanding the matters insofar as first four claims were concerned, for de novo adjudication. Insofar as the fifth claim for refund is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 It is the case of the appellant that it has fulfilled all the conditions of Notification No. 41/2012 (supra) for sanctioning of the refund/rebate as claimed by it. It is their case that: - The specified services had been used for the export of goods during the relevant period. The export proceeds had been received in convertible foreign exchange. CENVAT Credit was never availed by the appellant as it was only shown in their books of account with a view to quantify the export for the purposes of export incentives. Subsequent claims have been sanctioned under the very same grounds. They have not availed any double benefit as to the export. Claims for refund have been filed before the jurisdictional Service Tax authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which they have relied on the following: i. R.S. Infraprojects (Pvt.) Ltd. v. Commissioner of C.Ex., Ghaziabad [2017 (358) E.L.T. 1188 (Tri. All.)] ii. Monarch Catalyst Pvt. Ltd. v. Commissioner of C.Ex., Thane-I [2015 (37) S.T.R. 1021 (Tri. Mum.)] iii. Simla Agencies v. Collector of Customs [1993 (67) E.L.T. 599 (Tri. Del.)] iv. Nav Bharat Corporation, New Delhi v. Collector of Customs, Bombay [1983 (13) E.L.T. 1106 (C.E.G.A.T.)] v. Food Corporation of India Ltd. v. Collector of Customs, Bombay [1987 (30) E.L.T. 963 (Tri. Del.)] 4.1 On the other hand, the Ld. Departmental Representative contended that this Bench had remanded all the claims back to the file of original authority for the limited purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was made for the first time and hence the same was clearly time-barred. He has further held that though he agreed that the export incentives granted to the exporter should not be denied merely on procedural lapses, but however, the same would not bestow upon the exporters to file claims under inappropriate notifications, wrong jurisdiction and without adhering to or complying with the substantial conditions prescribed under the notifications. 7. After hearing the rival contentions, we find that this is a case where the original authority has decided the matter afresh based on the directions given by a co-ordinate Bench of the Tribunal in Final Order No. 41863 of 2016 dated 06.10.2016 and Final Order Nos. 42243 to 42245 of 2016 dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade even before the Commissioner(A), who had rejected the same. (vii) The rebate granted under Notification No. 41/2012 ibid. was incorrect since the assessee had availed CENVAT Credit even though they had reversed it, which was in clear contravention of the very same Notification. 8.2 We find from the above that prima facie, the Revenue is questioning the eligibility of the appellant-assessee for refund / rebate under Notification No. 41/2012 ibid. Further, as per the Revenue s grounds of appeal, as reproduced in the impugned order at paragraph 4.2 (vii), the assessee had in fact made a claim under Notification No. 41/2012 which was rejected in the said order, which later on came to be appealed against and set aside by this Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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