2010 (12) TMI 388 - HC - Service Tax

Refund - the application for refund made by the assessee can be said to be time barred - there is no scope for passing any interim order - Let Notice-of-Appeal shall be served upon the respondents by the Department concerned on usual course - Accordingly the application is disposed of

Summary

Issues:
1. Interpretation of amendment notifications regarding time limit for refund application under Exemption Notification.
2. Applicability of precedents in determining time-barred refund application.

Analysis:
1. The first issue before the High Court was the interpretation of the amendment notifications, specifically Notification No. 32/2008 and Notification No. 33/2008, which extended the time limit for making an application for refund. The Court framed the substantial question of law to determine whether these notifications, along with a circular, had retrospective operation and if the application for refund made by the assessee could be considered time-barred based on the facts and circumstances of the case. The Court's decision on this issue would depend on the clarification provided in the circular dated 12th March 2009 and the interplay between the notifications and the Exemption Notification No. 41/2007 dated 6th October 2007.

2. The second issue involved the applicability of certain judicial precedents in deciding the case. The Court needed to determine whether the ratio laid down in specific cases such as Miles India Limited v. Assistant Collector of Customs, CCE, Chandigarh v. Doaba Co-operative Sugar Mills, and Bombay Oil Industries v. UOI, as relied on by the Tribunal, or the ratio from cases like ONGC Ltd. v. Commr. of Customs, Mumbai and Commissioner of Income Tax-I, Ahmedabad v. Gold Coin Health Food Pvt. Ltd., as cited by the assessee, would be more relevant and applicable in the present scenario. The Court would need to analyze the facts and circumstances of the case in light of these conflicting judicial precedents to arrive at a just decision.

In conclusion, the High Court admitted the appeal based on the substantial questions of law framed regarding the interpretation of the amendment notifications and the applicability of judicial precedents. The Court did not pass any interim order at that stage and directed the appellant to file the necessary paper books within three months. The Notice-of-Appeal was to be served on the respondents by the concerned Department, and the application was disposed of, with all parties instructed to act on a photostat signed copy of the order.