2014 (10) TMI 484 - HC - Service Tax

Maintainability of appeal - revenue contended on the ground that what the petitioner had filed was only a representation and not a refund application - Cenvat credit - tele-communication network - Held that - Once this Court has directed that the representation made by the petitioner to the authorities praying for refund or credit in the cenvat credit account be considered and a speaking order be passed thereon after hearing the petitioner, then, the Tribunal has taken a hyper technical view. Annexure-A is nothing but an order passed by the authorities under the Act. Customs, Excise & Service Tax Appellate Tribunal is a Appellate Authority and it has been approached because of the rejection of the petitioner s plea claiming the refund or credit of cenvat credit. The order passed on the representation / application of the petitioner and in terms of the Division Bench direction dated 27th January, 2014 in Writ Petition No.621 of 2014 is nothing but a speaking order on the Refund Application - It is appealable to Customs, Excise & Service Tax Appellate Tribunal, who shall now allow the petitioner to proceed with the appeal filed before it in accordance with law. In the event the appeal is not existing on its file, the petitioner may be permitted to file a fresh appeal challenging the communication / order dated 7th March, 2014 by treating it as a order on the application seeking refund or credit of their cenvat credit account. - Decided in favour of Assessee.

Issues:
1. Petitioner seeking direction for credit of cenvat credit account.
2. Scheme of merger between petitioner and another company.
3. Challenge to speaking order for refund application.
4. Objection to maintainability of writ petition.
5. Tribunal's view on the order under the Act.
6. Disposal of the writ petition by the High Court.

Analysis:

1. The petitioner, engaged in telecommunication services, sought direction for crediting their cenvat credit account with an amount paid earlier. This payment was made towards the service tax liability of another company with which the petitioner had agreed to merge. The merger scheme was sanctioned by the Bombay High Court, but pending approval from the Madras High Court. The petitioner applied for a refund or credit of the amount paid, which was initially kept pending by the authorities.

2. The respondent raised objections to the maintainability of the writ petition, arguing that the petitioner should have filed a proper refund application instead of a representation. The Commissioner of Service Tax-II had denied the request, suggesting that it could be challenged under the Central Excise Act, 1944. The respondent urged for the dismissal of the petition on these grounds.

3. The petitioner's counsel highlighted a communication indicating that an appeal filed before the Tribunal was deemed not maintainable. The Tribunal considered the order in question as a communication, not an order under the Act, making the writ petition justifiable. The High Court, after considering these arguments, concluded that the order passed by the authorities on the petitioner's representation was indeed a speaking order on the refund application.

4. The High Court opined that the Tribunal's view was overly technical, as the order in question should be considered an order under the Act. Therefore, the writ petition was disposed of with directions for the petitioner to proceed with an appeal before the Tribunal. The Court allowed the petitioner to challenge the order dated 7th March, 2014, either through an existing appeal or by filing a fresh one, ensuring a decision on the appeal's merits in accordance with the law.

5. The Court kept all contentions open regarding the petitioner's claim, emphasizing that the appeal should be decided on its own merits and in compliance with legal procedures. The writ petition was ultimately disposed of without costs, providing clarity on the course of action for the petitioner in pursuing the appeal before the Tribunal.

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