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Judgment
These Appeals have been filed impugning the common order dated 27.8.2018 in two Appeals passed by the Commissioner (Appeals-III),
CST&CX, Mumbai by which the learned Commissioner while partly granting Refund under Rule 5 of Cenvat Credit Rules, 2004 in both the Appeals
denied the refund to the extent of Rs.34,62,435/- in Appeal No.V2(A)ST-I/89/2016 and Rs.21,46,912/- in Appeal No. V2(A)ST-I/234/2016. These
Appeals have been filed by the Appellants herein challenging the denial of refund in both the Appeals. No Appeal has been preferred by the Revenue
against partly grant of refund by the learned Commissioner.
The facts giving rise to the filing of the instant Appeals are stated in brief as follows. There are two separate refund claims which are involved in
these two Appeals. By way of impugned order part of the refunds claimed by the appellants were rejected by the learned Commissioner on the
grounds of:- (i) no nexus proved between the input and output services; (ii) the formula prescribed under Rule 5 ibid as well as Notification
No.27/2012-CE (NT) dated 18.6.2012 while calculating the amount of refund was not properly applied as it ought to have taken into account the
turnover of its Mumbai Office also while calculating the total turnover since the appellant have taken centralized registration at Mumbai; (iii) the
maximum amount of eligible refund cannot be greater than the unutilized Cenvat Credit for the quarter; and (iv) the value of services are not paid to
the vendor within the limitation period as prescribed u/r 4(7) ibid.
Learned counsel for the appellant submits that no proper reasoning was given by the learned Commissioner while rejecting part of the refund
claimed by the appellants. It has been submitted that all the invoices were produced before the authorities below by the Appellants in order to establish
the nexus but those were not taken into consideration by the learned commissioner while passing the impugned order. He also submits that otherwise
also it is settled position that after amendment in the Cenvat Credit Rules, the authorities cannot deny refund on the ground of ‘no nexus’.
According to him no proper reasoning was given by the learned commissioner for rejecting the claim on the aforementioned grounds and without
properly discussing the reasoning, evidences etc. the learned commissioner in paragraphs 7.3.2, 7.3.3, 7.4.1 and 7.4.2 of the impugned order rejected
the refunds on the above counts. He further submits that although by way of evidence/ tables/invoices the appellants tried to establish their point, the
same was not considered by the learned commissioner while rejecting part of the refund claims. According to learned counsel if the authorities below
are taking the turnover of its Mumbai office then they ought to have taken into consideration the Cenvat credit also pertaining to Mumbai office while
calculating the maximum amount of eligible refund. It has also been submitted that no show cause notice was issued to the appellants and without
issuance of show cause notice no order can be passed. According to learned counsel in none of the above issues proper findings were given by the
learned Commissioner while rejecting part of the refund claim. Per contra learned Authorised Representative reiterated the findings recorded in the
impugned order and prayed for dismissal of the Appeals filed by the Appellants.
I have heard learned counsel for the appellants and learned Authorised Representative for the Revenue and perused the case records including the
written submissions and the decisions cited by the respective sides. I find force in the contentions raised by the learned counsel. There is no discussion
about the contentions raised by the appellants and in the impugned order there are no proper reasonings/ findings as to how the part of the refund
claim was disallowed. From the impugned order it is not possible to know the reasoning for rejection of the part of refund claim. Learned
Commissioner ought to have discussed the relevant facts and given reasonings while rejecting part of the refund amount claimed by the appellants but
I do not find any such discussions in the impugned order. In these circumstances, I have left with no other option but to remand the Appeals back to
the learned Commissioner for deciding afresh limited to the issues raised in the instant Appeals because for the refund allowed by the learned
commissioner no appeal was filed and it attained finality. Therefore without going into the merits of the matter, I am remanding the matter back to the
learned commissioner with a direction to decide the issues raised in the instant Appeals afresh after recording proper reasonings/findings and after
giving reasonable opportunity of hearing to both the sides.
The Appeals are therefore allowed by way of remand to the extent mentioned in the preceding paragraph.
(Order pronounced in the open Court on 06.01.2021)