2017 (3) TMI 1022 - AT - Service Tax

Refund claim - Rule 5 of the CCR read with N/N. 05/2006 CE (N T) dated 14th March - Held that - The present appeal arises out of Order in Appeal No.2/2014 which emanates from Order-in-Original No 255/2013. As the said order has already been set aside by the Tribunal and the Tribunal having observed that the Order in Appeals passed by the Commissioner (Appeals) is irrelevant and incompetent proceedings, I accept the discussions and the judgement rendered in CESTAT Final Order No.20258/20157 dt 5.2.2015 and thereby set aside the Order in Appeal 2/2014 - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claims rejection under CENVAT Credit Rules with subsequent appeals and orders leading to conflicting decisions.

Analysis:
The initial refund claims under Rule 5 of the CENVAT Credit Rules were rejected in the order in original No. 10-R/2009-S.Tax dated 24.02.2009. Subsequently, the Commissioner (Appeals) in OIA No 12/2009 held the appellant eligible for the refund, leading to a departmental appeal before the Tribunal with a stay application that was dismissed on 14.06.2010. After the dismissal of the stay application, the refund sanctioning authority re-adjudicated the eligibility of the refund and issued order-in-original No. 255/2013 on 31.10.2013, sanctioning part of the refund but rejecting a specific amount.

The department and the appellant both filed appeals before the Commissioner (Appeals) against this denovo order. The Commissioner (Appeals) in Order in Appeal No 4/2014 dated 26.03.14 allowed the department's appeal, rejecting the refund granted in the denovo order. Simultaneously, in a separate Order in Appeal No. 2/2014 dated 08.01.2014, the appeal filed by the appellant was also dismissed by the Commissioner (Appeals).

Meanwhile, the Tribunal heard the department's appeal No. ST/779/2009 and passed Final Order No. 20863/2014 on 19.5.2014. Subsequently, the appellant filed appeals against Order in Appeal No. 4/2014 and Order in Appeal No. 2/2014 before the Tribunal as Appeal No 22086/2014 and Appeal No. 21345/2014, respectively. The Tribunal, in Final Order No. 20258/2015 dated 5.2.2015, set aside the denovo order and Order in Appeal No. 4/2014, stating that the proceedings were irrelevant and incompetent due to the primary order's incompetence.

The present appeal arose from Order in Appeal No. 2/2014, which was set aside by the Tribunal based on the observations in Final Order No. 20258/20157 dated 5.2.2015. The Tribunal deemed the primary order dated 31.10.2013 as incompetent, rendering subsequent appeals and orders futile. Consequently, the impugned orders were quashed, and the appeal was allowed without costs. The appeal was ultimately allowed with consequential reliefs, considering that the appellants had already received the refund subject to the appeal.