2008 (10) TMI 47 - HC - Service Tax

Whether the claim to refund of service tax which has been paid in excess wrongly could have been refused in respect of service tax, there is no provision in statue for assessment - tribunal is not justified in rejecting the refund claim on the ground that assessee has not challenged assessment order matter is remanded as no order capable of being appealed against, had ever been passed, tribunal is not justified in holding that assessee could file appeal against the assessment order

Summary

Issues:
Challenge to impugned orders of the Tribunal and authorities below regarding the claim to refund of service tax paid in excess.

Analysis:
The appellant filed an appeal challenging the Tribunal's orders and authorities' decisions regarding the refund of service tax paid in excess. The appellant voluntarily deposited amounts as service tax on services charged from sister concerns/clients, later realizing they were not taxable. The claim for refund was based on credit notes issued for the entire amounts. However, the Assistant Commissioner rejected the refund claim, stating insufficient evidence to justify the claim. The appellant failed to provide complete details and evidence supporting the refund claim, leading to rejection based on inability to verify the claimed amount accurately. The Assistant Commissioner also noted that the burden of tax had been passed on to clients, making the refund claim invalid.

The Commissioner dismissed the appeal, considering the services taxable under "Manpower Recruitment Agency" and "Security Services," falling under the definition of "Management Consultant." The appellant contended that all necessary documents were submitted to the Assessing Officer. Subsequently, the Tribunal dismissed the appeal, citing the absence of a challenge to the assessment order as a reason for rejecting the refund claim indirectly challenging the assessment order without filing a statutory appeal.

Upon review, the High Court observed that the Tribunal's reasoning lacked a legal basis as the appeal under Section 85 is against a specific order, which was not applicable in this case. The Court highlighted the absence of an appealable order against which the appellant could file an appeal, rendering the Tribunal's decision unsustainable. Additionally, the Court noted a previous order by the Commissioner in favor of the appellant, further undermining the Commissioner's reasoning for dismissal.

In conclusion, the High Court allowed the appeal, setting aside the Tribunal and Commissioner's orders. The matter was remanded to the Commissioner (Appeals-II) for a fresh adjudication considering the law and previous orders favoring the appellant. The Commissioner was directed to expedite the decision-making process, ensuring a fair assessment of the refund claim based on the observations made.