2012 (11) TMI 302 - AT - Service Tax

Delay in appeal - refund of service tax as per notification No. 41/200-S.T. dated 6-10-2007 - excise v/s service tax - Held that - Just because the refund claim has been filed before the Assistant Commissioner of Central Excise, it does not become the matter relating to Central Excise, thus unable to agree that sub-section (3) of Section 85 is only for service tax demands. Notification No. 41/2007-S.T. has been issued in exercise of powers vested under Section 93 of Finance Act, 1994 and therefore it cannot be said that notification is Centra1 Excise Notification. The refund has been claimed as per the provisions of this notification. The refund claim is related to service tax. Under these circumstances the provisions of Section 85 of Finance Act, 1994, would be applicable. And the Original Adjudicating Authority should have issued the preamble applicable to the service tax matters. Commissioner has calculated 90 days whereas Section 85 speaks of three months. Therefore, the calculation itself is made in an incorrect manner - the appeals are required to be remanded to the Commissioner (Appeals) to consider the matters afresh treating the matters as relating to Service Tax - in favour of assessee by way of remand.

Summary

Issues Involved:
1. Appeal filed against Order-in-Appeal No.12/2011(Ahd-I)CE/MM/Commr.(A)/Ahd, claiming it is not hit by limitation under Section 35 of Central Excise Act, 1944.

Analysis:
The appellant filed an appeal against an order stating that it was barred by limitation under Section 35 of the Central Excise Act, 1944. The appellant argued that a previous Tribunal order in their favor for a similar issue should be considered. The Tribunal noted that the issue in the previous order was identical to the current case, involving the refund of service tax for exported goods. The Tribunal found that the Original Adjudicating Authority had incorrectly applied the law regarding the time limit for filing appeals and the jurisdiction over service tax matters. It was held that the provisions of Section 85 of the Finance Act, 1994, were applicable to the case, and the preamble of the order should have been specific to service tax matters. The Tribunal also observed discrepancies in the calculation of time limits by the Commissioner and directed a reevaluation of the appeals by the Commissioner (Appeals) to consider the matters as relating to service tax and provide appellants with an opportunity to present their case.

The Tribunal found that the appeals had been rejected without proper verification and without considering certain factors like appeals filed on weekends. The Commissioner (Appeals) had not given the appellants an opportunity to explain the delay in filing the appeals. Therefore, the Tribunal remanded the matter back to the Commissioner (Appeals) to reexamine the issues, treating them as related to service tax, and to decide after allowing the appellants to present their case. The Tribunal set aside the impugned order and allowed the appeal by remanding it to the first appellate authority for reconsideration following the principles of natural justice.

In conclusion, the Tribunal allowed the appeal by setting aside the impugned order and remanding the matter back to the Commissioner (Appeals) for a fresh consideration following the principles of natural justice. The Tribunal emphasized the importance of correctly applying the law and providing appellants with the opportunity to present their case in matters related to service tax refunds.