By TIOL News Service

BANGALORE, MAR 24, 2017: THE CESTAT had in this case - 2015-TIOL-1281-CESTAT-BANG held thus -

Service Tax - Refund claim of Cenvat credit on exports - Rejection on ground of bar of limitation and absent nexus between input and output services - CESTAT Bangalore in M/s. Apotex Research - 2014-TIOL-1836-CESTAT-BANG has clarified all the issues involved pertaining to refund of credit assessee exporting goods is entitled to - Following the decision, matter remanded to the original authority for fresh consideration in accordance with due process of law.

Revenue is aggrieved and has, therefore, filed appeals in the Karnataka High Court.

Incidentally, there is a long delay of 283 days in filing the appeal.

At the outset, the High Court noted - …Tribunal, for the reasons recorded in the order has remanded the matter to the authority to consider in accordance with law. As such, discretion has been exercised by the Tribunal and it cannot be said that the point of law much less, any substantial question of law would arise for consideration at this stage as sought by the appellant.

The counsel for the Revenue contended that the claim of refund is barred by proviso to Section 11B of the CEA, 1944.Inasmuch as in the case of mPORTAL INDIA WIRELESS SOLUTIONS P. LTD - 2012-TIOL-933-CESTAT-BANG an observation is made that limitation provided under Section 11B of the CEA, 1944 does not apply for refund of accumulated CENVAT credit, but other High Courts had taken a different view. And, therefore, since the question of limitation is not properly considered by the Tribunal, the point of law as raised would arise for consideration and hence, this Court may consider it on merits.

The High Court observed -

4. …, when the matter is remanded for reconsideration, the question of limitation may also be required to be considered. But in any event, as observed earlier, remand is by exercise of discretion, no point of law would arise at this stage as sought to be canvassed.

Holding that no useful purpose would be served in taking too lenient view on the aspect of delay and thereafter to consider merits of the appeals at the later stage, the application for condonation of delay as well as the appeals were dismissed.

(See 2017-TIOL-546-HC-KAR-ST)