2019 (10) TMI 1419 - AT - Service Tax

Recovery of refund of excess paid service tax - Reason stated in SCN no longer survives as Tribunal already set aside the matter - HELD THAT - The reason for issuing the show cause notice that an appeal is pending before the Commissioner (Appeals), no longer survives as the order passed by the Commissioner (Appeals) has been set aside by the Tribunal. The impugned order is set aside - appeal is allowed.

Summary

Issues:
Recovery of refund amount with interest, adjustment of excess tax payment, validity of refund claim, pending appeal affecting refund recovery.

Analysis:
The Appellant, engaged in general insurance business, opted for provisional assessment during 2008-09 and 2009-10. An order dated 29 March, 2012, highlighted discrepancies in tax payments, specifically noting that for January 2009, the Appellant used Cenvat Credit instead of cash for Service Tax payment. Additionally, an excess payment of Service Tax for October 2008 was identified. The Appellant contested this order before the Commissioner (Appeals), seeking adjustment of the January 2009 payment against the excess tax paid in October 2008. This appeal was disposed of on 13 December, 2012, allowing the adjustment.

Furthermore, a show cause notice dated 19 April, 2011, demanded Service Tax payment for January 2009 due to the use of Cenvat Credit. This notice was adjudicated on 30 August, 2012, directing the adjustment of this demand against the excess tax paid in October 2008, without imposing interest or penalties. Subsequently, the Department appealed this decision before the Tribunal, leading to dismissal on 09 February, 2017.

The Appellant filed a refund claim of ?1,74,18,244 on 14 March, 2013, representing the excess Service Tax payment confirmed in the March 2012 order. This refund was granted on 14 June, 2013. However, the Department challenged this before the Commissioner (Appeals) citing a pending appeal against the 30 August, 2012 order. The Commissioner (Appeals) allowed the Department's appeal on 17 December, 2012, prompting the Appellant to appeal to the Tribunal. The Tribunal, on 21 September, 2017, ruled in favor of the Appellant, emphasizing the irrelevance of the pending appeal to the excess payment fact.

A subsequent show cause notice dated 29 March, 2014, sought to recover the refunded amount following the Department's appeal. The order dated 15 July, 2015, adjudicated this notice. The Appellant challenged this order, arguing that the Tribunal's decision had overturned the Commissioner (Appeals) ruling, rendering the refund valid. The Tribunal concurred, setting aside the impugned order and allowing the appeal, entitling the Appellant to the refund without further delay.