2011 (10) TMI 354 - HC - Service Tax

Review petition - first respondent not registered under Service tax has not produce any document and no refund application thus Writ not maintenable - Second respondent filed refund claim but dismissed as it was time barred - Order passed on 22nd May, 2010, not brought to notice before court - Held That - The act in which the review Petitioner functions is a self contained code. Second Respondent even after knowing that the refund application was rejected as time barred did not bring it to the notice of the Court. Order suffers from error. Review application has to be allowed.

Summary

Issues:
Review of order directing refund without interest, delay in filing review application, maintainability of writ petition for refund claim, power of judicial review under Article 226.

Analysis:
1. The review application was filed by the Assistant Commissioner, Central Excise, seeking a review of the order directing a refund without interest. The order was based on written instructions from the first Respondent, and the second Respondent did not contest the facts initially. The review application was filed with a delay of 52 days, which was condoned by the Court.

2. The grounds for review included the first Respondent not holding Service Tax registration, not filing returns, and not submitting a refund claim. The first Respondent argued that the refund application was filed within the required timeframe and that the Service Tax was deducted wrongly, justifying the refund.

3. The review Petitioner contended that the Act provides a specific procedure for refund claims, and the first Respondent should have followed it. The Court noted that the order directing the refund was based on incomplete information and suffered from a manifest error, necessitating a review in the interest of justice.

4. The Court referred to the Supreme Court judgment in Rajender Singh v. Lt. Governor, Andaman and Nicobar Islands, emphasizing the power of judicial review to correct errors and prevent miscarriage of justice. In light of this, the review application was allowed, the previous order directing the refund was set aside, and the writ petition was dismissed as not maintainable.

5. The judgment highlights the importance of following the prescribed procedures for refund claims and the Court's authority to review its own orders to ensure justice. The case underscores the significance of providing complete and accurate information to the Court to avoid errors in judgments.