2020 (2) TMI 1628 - AT - Service Tax

Jurisdiction - power of Commissioner (Appeals) to sanction balance refund claim suo motu - Assistant Commissioner had not rejected the balance amount and has issued a separate show cause notice to the assessee - HELD THAT - The Original Adjudicating Authority vide his first order sanctioned an amount of ₹ 2.53 crores approximately out of the total claim of refund of ₹ 22.75 crores approximately made by the assessee. This leads to evident conclusion that the balance refund claim stands rejected by him. In this scenario, the order of the Commissioner (Appeals) allowing the balance refund claim cannot be said to be out of the scope of the impugned order before him. In any case the subsequent show cause notice also stands decided by the Assistant Commissioner vide his order dated 26/04/2019 sanctioning the refund claim. As such, at the most the objection raised by the Revenue is only of technical objection. Appeal rejected - decided against Revenue.

Summary

Issues:
1. Appeal against order passed by Commissioner (Appeals) for demand of Service Tax.
2. Refund of deposits made by the assessee during adjudication proceedings.
3. Sanctioning of refund by Original Adjudicating Authority and modification by Appellate Authority.
4. Contention regarding balance refund claim and separate show cause notice.
5. Adjudication of subsequent show cause notice by Original Adjudicating Authority.
6. Rejection of balance refund claim by Original Adjudicating Authority.
7. Entitlement of the assessee to the refund only once.

Analysis:

Issue 1: The appeal was filed against the order passed by the Commissioner (Appeals) for the demand of Service Tax amounting to around &8377; 34.81 crores approximately. The Tribunal set aside the order of confirmation of demand and allowed the appeal filed by the assessee with consequential relief.

Issue 2: Following the Tribunal's order, the assessee approached the Revenue for a refund of the deposits made during the adjudication proceedings. The Original Adjudicating Authority sanctioned a partial refund of around &8377; 2.53 crores, stating that the balance amount of around &8377; 20.21 crores would be subject to a separate show cause notice.

Issue 3: The assessee challenged the Original Adjudicating Authority's order before the Commissioner (Appeals), who modified the order and sanctioned the balance refund amount of around &8377; 20.21 crores along with applicable interest.

Issue 4: The Revenue contested the Commissioner (Appeals) order, arguing that the balance refund claim was not rejected by the Assistant Commissioner, who issued a separate show cause notice. The Revenue objected to the Commissioner (Appeals) sanctioning the balance refund claim suo motu.

Issue 5: The subsequent show cause notice issued by the Assistant Commissioner was adjudicated, sanctioning the refund claim. The Revenue did not appeal against this subsequent order.

Issue 6: The Original Adjudicating Authority rejected the balance refund claim initially, leading to the Commissioner (Appeals) allowing the balance refund claim. The subsequent show cause notice was also decided by the Assistant Commissioner, thereby addressing the Revenue's objection as a technicality.

Issue 7: The Tribunal noted that the balance refund claim was rejected by the Original Adjudicating Authority initially. The Commissioner (Appeals) decision to allow the balance refund claim was within the scope of the impugned order. The Revenue's appeal was rejected, clarifying that the assessee would be entitled to the refund only once, not based on two separate orders.

In conclusion, the Tribunal disposed of the Revenue's appeal, affirming the Commissioner (Appeals) decision to sanction the balance refund claim and clarifying the entitlement of the assessee to the refund only once.