COMMISSIONER OF C. EX., BANGALORE Vs. MAVENIR SYSTEMS PVT. LTD.

JUDGEMENT

(1.) THE appeal filed by the Department is delayed by one day. After considering the appellant's explanation of this delay, we allow the "condonation -of -delay" application. The second application of the appellant seeks stay of operation of the impugned order. After hearing the learned Superintendent (AR), we are of the view that the appeal itself can be finally disposed of at this stage. Hence, after dismissing the stay application, we take up the appeal. There is no representation for the respondent despite notice, nor any request of theirs for adjournment.

(2.) ON a perusal of the records and hearing the learned Superintendent (AR), we note that the respondent had claimed refund of unutilised CENVAT credit of service tax amounting to Rs. 11,39,913/ - paid on numerous input services which were said to have been used for export of their output service. This refund claim was filed under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. -C.E. (N.T.), dated. 14 -3 -2006. The original authority allowed refund only to the extent of Rs. 2,91,934/ - being the total CENVAT credit of the service tax paid on three input services viz. (i) telecom service, (ii) renting of immovable property and (iii) repair and maintenance. This benefit was granted on the basis of the finding that there was direct nexus between the input services and the output service. In respect of other input services, no nexus was found with the output service and consequentially the claim for refund of CENVAT credit was rejected. Against the rejection of the refund claim, the assessee preferred an appeal to the Commissioner (Appeals) and the latter held in favour of the party on the nexus issue and directed the original authority to re -quantify the amount for refund on the basis of Chartered Accountant's certificates to be produced by the claimant in terms of Board's Circular No. 120/1/2010, dated 19 -1 -2010. The present appeal of the Revenue is directed against the order passed by the Commissioner (Appeals).

(3.) WE have carefully perused the relevant findings of the Commissioner (Appeals). We find that a clear nexus was found between the output service and each of the input services and accordingly refund of the CENVAT Credit taken on the input services was held to be admissible in principle. It is for the limited purpose of quantification of the amount for refund in terms of the Board's Circular dated 19 -1 -2010 that the case was remitted to the original authority. This action of the appellate authority cannot be characterized as remand and therefore the contention raised by the appellant on the strength of the Apex Court's judgment in MIL India Ltd. case cannot be sustained.