2013 (4) TMI 296 - AT - Service Tax

Refund claims in respect of inputs service credit in terms of Notification No. 41/07 dated 6.10.07 denial on the ground of lack of jurisdiction - Instead of filing an appeal against order of Asstt. Commissioner, Delhi on the ground of jurisdiction the appellant filed fresh refund claim before Asstt. Commissioner of Central Excise, Sonepat who rejected the refund claim on the ground of limitation - Held that - Fully agreeing with the observations and findings arrived at by Commissioner (Appeals) that Asstt. Commissioner, Sonepat was not having jurisdiction to reopen the proceedings concluded at the level of Asstt. Commissioner, Delhi. Whether the order of Asstt. Commissioner, Delhi was right or wrong, was required to be adjudged by the higher appellate forum. The appellants plea that the Asstt. Commissioner, Delhi ought to have transferred the papers to Asstt. Commissioner, Sonepat for further action instead of rejecting the same cannot be appreciated inasmuch as the Asstt. Commissioner, Delhi having passed the orders rejecting the refund claim, it was not open to the appellants to adjudge the correctness of the same. The proper course of action was to file the appeal against the above on the said ground. Having not done that, the findings of Commissioner (Appeals) that Asstt. Commissioner, Sonepat was not authorised to reopen the proceedings and to reconsider the same when their claim finally stand concluded by the Asstt. Commissioner Delhi cannot be faulted. Thus no infirmity in the impugned order of the Commissioner (Appeals) the appellant will not be entitled to refund of Service Tax credit inasmuch as the same stand denied to them by the order of AC, New Delhi.

Summary

Issues:
1. Jurisdiction of Asstt. Commissioner, Sonepat to reconsider a refund claim rejected by Asstt. Commissioner, Delhi.
2. Finality of orders and the requirement to appeal to higher appellate forum.
3. Correctness of the decision by Commissioner (Appeals) in setting aside the order of Asstt. Commissioner, Sonepat.

Analysis:
1. The appellant, an exporter, filed refund claims with Asstt. Commissioner, Delhi, despite the normal jurisdiction being with Asstt. Commissioner, Sonepat. Asstt. Commissioner, Delhi rejected the claims citing lack of jurisdiction. The appellant did not appeal this decision and instead filed a fresh claim with Asstt. Commissioner, Sonepat, which was rejected on the ground of limitation.

2. Commissioner (Appeals) noted that since the order of Asstt. Commissioner, Delhi was final and unchallenged, Asstt. Commissioner, Sonepat had no authority to reconsider the matter. The Commissioner held that the correct course of action for the appellant would have been to appeal the initial decision instead of filing a fresh claim elsewhere. The rejection by Asstt. Commissioner, Sonepat, was set aside by Commissioner (Appeals) based on jurisdictional issues.

3. The Tribunal agreed with Commissioner (Appeals) that Asstt. Commissioner, Sonepat lacked jurisdiction to reopen the case decided by Asstt. Commissioner, Delhi. The Tribunal emphasized that the correctness of the initial decision should have been challenged at a higher appellate forum. The Tribunal upheld the decision of Commissioner (Appeals) to set aside the order of Asstt. Commissioner, Sonepat, not on merits but due to the lack of jurisdiction. Consequently, the appellant was not entitled to a refund of Service Tax credit, as denied by the order of Asstt. Commissioner, New Delhi.

4. Ultimately, the Tribunal rejected the appeal filed by the appellant, affirming the decision of Commissioner (Appeals). The Tribunal highlighted that the setting aside of the order of Asstt. Commissioner, Sonepat was based on jurisdictional grounds and not on the merits of the case. The appeal was dismissed, and the COD application was disposed of accordingly.