Final Order Nos. A/1617-1621/2009-WZB/AHD, arising from in Appeal Nos. E/780-783/2009 and Cross Objection No. E/CO/45/2009. Case: Commissioner of Central Excise, Vadodara Vs Sameer Linkages (P.) Ltd.. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Final Order Nos. A/1617-1621/2009-WZB/AHD, arising from in Appeal Nos. E/780-783/2009 and Cross Objection No. E/CO/45/2009 |
| Judges | Archana Wadhwa, Member (J) |
| Issue | Service Tax Act |
| Citation | 2009 [16] STR 698 (Tri - Ahmd), 2009 (22) STT 497 |
| Judgement Date | July 28, 2009 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
Archana Wadhwa, Member (J), (West Zonal Bench At Ahmedabad)
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Being aggrieved with the order passed by the Commissioner (Appeals), revenue has filed the present appeal. I have heard Shri Sameer Chitkara, learned SDR for the revenue and Shri W. Christian, learned Advocate appearing for the assessee.
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As per facts on record, the respondent is a 100 per cent EOU engaged in the manufacture of excisable goods. They have filed refund claims of Rs. 55,722 for the period July 2006 to September 2006 in respect of accumulated and unutilized Cenvat Credit of Service Tax paid on commission disbursed for the sales activities of the finished goods. The said refund claim was rejected by Assistant Commissioner on the ground that in terms of Rule 5 of Cenvat Credit Rules, 2002, read with Notification No. 5/06-CE(NT), dated 14-3-2006, the credit of input services should be in respect of those services used for the manufacture of the final product. Inasmuch as the said service is for sale of final product, the benefit of the credit in terms of Rule 5 would not be admissible. On an appeal, the Commissioner (Appeals) held in favour of the assessee, by holding that the place of removal gets extended to Port area, and any services connected with the business would get covered by the input service. Accordingly, he held that the assessee is entitled to refund.
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Revenue has challenged the present appeal on the following grounds:
3.1 The Commissioner (Appeals) has observed that the ground taken by the Department at appeal stage was not an issue at the original stage and therefore, the same is not legally tenable. However, the Commissioner (Appeals) has failed to consider that an issue of law can always be raised even at appellate stage, even if it was not raised at the adjudication stage. The issue involved is purely a question of law and is to be determined on facts already available on records. The issue involved in the present case does not call for adducing any additional evidence nor does it require examination of factual position other than those examined at the adjudicating stage and therefore the same can be raised at the appellate stage. The Hon'ble CESTAT in the case of Extrusion Processes Ltd. v. Collector of Central Excise 1994(69) ELT 144 (Trib.) observed that:
It is true that certain issues of law could be raised even at the appellate stage, even though the same were not raised at the adjudication stage. Such issues however should be pure...
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