2009 (5) TMI 603 - AT - Service Tax

Refund application - GTA services - find from the record that appellants have paid the duty twice thus they are entitled for the refund of the duty paid either on 8-12-2006 or in the year 2005 through Cenvat account since tax is payable only once for the service received or provided one time under the Service Tax Act - Admittedly the appellants have paid the duty twice and the denial of the credit would be unjust - Therefore held that the refund application was filed on 8-1-2007 from the date of reversal on 8-12-2006 cannot be held to be barred by limitation.

Summary

Issues:
1. Payment of service tax on GTA services from Cenvat credit account.
2. Reversal of entry in Cenvat credit account and subsequent refund claim.
3. Rejection of refund claim on the ground of time bar.
4. Applicability of limitation period for refund claim.
5. Justification for reversal of entries and subsequent refund claim.
6. Double payment of duty and entitlement for refund.

Analysis:
1. The appellant paid service tax on GTA services from the accumulated Cenvat credit account during March 2005 to November 2005. However, Central Excise Authorities later informed that such payment should be made in cash, leading to the appellant paying the service tax and interest in cash on 5-1-2006.

2. The appellant intimated the range office about rectifying the mistake by making a reverse entry in the Cenvat credit account on 9-1-2006, which was not objected to by the authorities until an audit objection was raised on 8-12-2006. The appellant then reversed the entry and filed a refund claim on 8-1-2007, which was objected to on the ground of being time-barred.

3. The show cause notice proposing to reject the refund claim due to time bar was replied to by the appellant, but the Original Adjudicating Authority and Commissioner (Appeals) upheld the rejection, leading to the present appeal.

4. The Tribunal found that the refund claim filed on 8-1-2007 was within the limitation period as it was based on the reversal of the entry made on 8-12-2006, which was deemed as payment. The Tribunal considered this date as the relevant one for the refund claim.

5. It was established that the service tax payment from Cenvat credit was in accordance with the law until the objection by authorities, leading to the reversal of entries and payment in cash. The Tribunal noted that the appellant's actions were based on advice and subsequent audit objection, justifying the refund claim made within eight days of the reversal.

6. The Commissioner (Appeals) acknowledged that the appellant had paid the duty twice and was entitled to a refund, citing a Tribunal decision that the refund application filed on 8-1-2007 was not time-barred. The Tribunal allowed the appeal, setting aside the impugned order and granting consequential relief to the appellant.