2020 (3) TMI 1303 - AT - Service Tax

Refund of Service Tax paid - Payment to the builder in respect of a property which she has booked but later cancelled - certain discrepancy in the Chartered Accountant Certificate - HELD THAT - There is a incongruence in the order-in-original and order-in-appeal. While the order-in-original rejects the refund claim as inadmissible, order-in-appeal rejects only on the ground of discrepancy in the Chartered Accountant certificate. It is apparent that the appellant was not confronted with the so-called defects in the CA certificate before rejecting the refund claim. Moreover, it is found that the issue of limitation has not been raised by the Original Adjudicating Authority or the first appellate authority. In these circumstances, it cannot be raised in remand proceedings as well. The impugned order is set aside and the matter is remanded to Original Adjudicating Authority for fresh consideration - appeal allowed by way of remand.

Summary

Issues:
Denial of refund of Service Tax paid for a cancelled property booking; Discrepancy in Chartered Accountant Certificate; Consideration of limitation issue.

Analysis:
The appeal was filed against the denial of refund of Service Tax paid for a property booking that was later cancelled. The Chartered Accountant for the appellant argued that the refund claim was rejected due to a discrepancy in the Chartered Accountant Certificate. He requested a remand for fresh consideration, stating they could clarify the alleged discrepancy. The order-in-original deemed the claim inadmissible, while the order-in-appeal rejected it solely based on the certificate issue.

The Authorised Representative agreed to a remand but raised the limitation issue. The Chartered Accountant objected, noting that the limitation issue was not raised in either the original order or the appeal. The tribunal observed the inconsistency between the two orders and highlighted that the appellant was not given an opportunity to address the alleged defects in the certificate before the claim was rejected. Additionally, the limitation issue was not previously raised by the authorities.

Consequently, the tribunal set aside the impugned order, remanding the matter to the Original Adjudicating Authority for a fresh review. The tribunal held that since the limitation issue was not raised earlier, it could not be considered in the remand proceedings. The judgment emphasized the importance of procedural fairness and the need for issues to be properly raised and addressed during the adjudication process.