2011 (9) TMI 597 - AT - Service Tax

Cenvat Credit - Service tax paid in cash and not under protest - Held that - original payment of service tax was made through CENVAT credit account. Hence the refund also will be allowed through CENVAT credit account only. Appeallant paid duty in cash and reversed credit - Held That - Department cannot seek to retain the tax paid twice for the same transaction, Assessee is entitled for the refund of the tax payment made through the CENVAT credit account.

Summary

Issues:
Appeal against refund claim denial and interest rejection; Entitlement to refund in cash; Entitlement to pay service tax through CENVAT credit account; Validity of appellate authority's orders.

Analysis:
1. The appellant, a machinery manufacturer providing taxable services, paid service tax through CENVAT credit account. Upon audit, the authorities found the payment improper as inputs weren't used for services. Appellant paid Rs. 5,35,500 in cash and interest. A show cause notice proposed disallowing credit and recovering interest. Refund claim for double payment was partially granted.

2. The appellant appealed for cash refund and interest, but the Commissioner upheld the original order. Revenue appealed against refund sanction, arguing against taking credit and reversing it. The Commissioner allowed the Revenue's appeal, leading to two contradictory orders by the appellate authority.

3. The appellant argued that the appellate authority's orders lacked legal basis, seeking cash refund and interest. They claimed entitlement to pay service tax via CENVAT credit account.

4. The Revenue contended that the appellant accepted liability by paying in cash without protest, including interest. They opposed the appellant's claim for using CENVAT credit and recrediting wrongly availed credit.

5. The Tribunal noted the appellant's acceptance of cash payment liability without protest, rejecting their claim for CENVAT credit payment. Interest was justified for delayed payment, precluding its refund. Refund through CENVAT credit was upheld based on precedent.

6. The Tribunal found no merit in the Revenue's denial of the Rs. 5,35,500 refund, as the appellant paid twice for the same transaction. The order-in-appeal upholding the original decision was deemed correct, while the order setting it aside was deemed incorrect.

7. In conclusion, the Tribunal upheld the order-in-appeal granting the refund and set aside the order against it. The appeals were disposed of accordingly.