2017 (4) TMI 561 - AT - Service Tax

Refund - deposit of service tax with interest on the instruction of revenue - Subsequently, CBEC clarified vide Board Circular No. 111/05/2009 ST dated 24/02/2009, wherein inter-alia clarified that service as provided by the appellant, was covered under Export of Service Rules, 2005 and the same was not a taxable service. Held that - the amount paid towards tax no longer remained tax in view of the CBEC Board Circular No. 111/05/2009 ST dated 24/02/2009 - the amount of interest as initially paid, also partook the nature of Revenue deposit, upon clarification of the law - Adjudicating Authority directed to grant refund of the said amount of ₹ 10,24,535/- with interest from 3 months ended from the date of refund application dated 30/07/2009. - Decided in favor of assessee.

Issues:
1. Rectification of a Final Order dismissing an appeal.
2. Refund claim for service tax and interest.
3. Applicability of limitation under Section 11B of the Central Excise Act, 1944.
4. Consideration of legal grounds and judgments in the Final Order.

Analysis:

1. Rectification of Final Order:
The appellant filed a Miscellaneous Application seeking rectification of the Final Order where their appeal was dismissed. The appellant argued that the service provided was covered under Export of Service Rules and was not taxable. The Revenue demanded service tax, which was paid along with interest. A Board Circular clarified that the service was not taxable. The appellant sought a refund of the interest amount, which was denied by the Adjudicating Authority and Commissioner (Appeals). The Tribunal recalled the Final Order due to errors in not considering relevant legal grounds and judgments.

2. Refund Claim for Service Tax and Interest:
The appellant contended that the tax and interest collected without legal authority should be refunded as per the CBEC Board Circular. The Tribunal held that the interest amount paid by the appellant towards tax, which was later clarified as not taxable, should also be refunded. The Tribunal directed the Adjudicating Authority to refund the interest amount along with the service tax, stating that the appellant was entitled to the refund as it was collected without legal authority.

3. Applicability of Limitation under Section 11B:
The Revenue supported the Final Order, stating that the refund of interest was rightly refused based on the limitation under Section 11B of the Central Excise Act, 1944. However, the Tribunal found errors in the Final Order and ruled in favor of the appellant, directing the refund of the interest amount along with the service tax.

4. Consideration of Legal Grounds and Judgments:
The appellant argued that the Tribunal did not consider the legal grounds raised in the appeal, including reliance on a judgment of the Hon'ble Supreme Court. The Tribunal agreed that there were errors in not addressing these grounds, leading to a miscarriage of justice. The Tribunal recalled the Final Order and allowed the appeal, granting the appellant the refund of the interest amount collected without legal authority.

In conclusion, the Tribunal's detailed analysis and consideration of legal grounds, along with the clarification provided by the CBEC Board Circular, resulted in the appellant being granted the refund of the interest amount along with the service tax, as it was collected without legal authority.

← Previous Next →