9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2008 (5) TMI 130 - AT - Service TaxAppellant is seeking waiver of deposit of refund amount already sanctioned - appellant s contention is that the order passed by the Commissioner (Appeals) has become final and the Department cannot re-open the issue by issue of SCN, is acceptable - stay application is allowed - aspect pertaining to legality on issue of show cause notice can be examined at the final stage
Issues:
1. Validity of re-opening a refund case after it has been sanctioned and received. 2. Interpretation of legal precedents regarding challenging appellate authority's order and issuance of show cause notice. Analysis: Issue 1: The appellant sought waiver of deposit of a refund amount already sanctioned and received. The Tribunal remanded the case to the Original authority for fresh consideration. The Appellate authority, after detailed consideration, allowed the appeal subject to verification of unjust enrichment. The refund was sanctioned and received by the assessee. However, the Department issued a show cause notice after a considerable time. The appellant argued that the Commissioner's order had become final, and the Department could not re-open the issue. The authority contended that they could re-open the matter through a show cause notice, citing a judgment of the Bombay High Court in a similar case. Issue 2: The learned Counsel distinguished the cited judgment and argued that under normal circumstances, a refund can be re-opened by a show cause notice. However, in cases where the refund has been sanctioned by the Appellate Authority and not challenged, making the order final, the refund should not be re-opened. The Counsel referred to a judgment by the Apex Court in support of this argument. After hearing both sides, the Tribunal found that the order passed by the Commissioner (Appeals) was not challenged by the Revenue, aligning with the judgment of the Apex Court. Consequently, the Tribunal allowed the stay application by granting waiver of pre-deposit and ruled that there shall be no recovery of the amount even after 180 days from the date of the order. The appeal was scheduled for a final hearing before the Single Member Bench.
|
