2017 (4) TMI 651 - HC - Service Tax

Refund claim - rejection on account of Time Bar - Held that - the respondent, filed an appeal for refund u/s 11-B of the Act, which was not necessary in view of the order of the Appellate Authority which had attained finality. The Commissioner (Appeals) also by mistake considered the appeal independently and by an order dated 31.03.2009, rejected the appeal - The Tribunal has imposed a cost of ₹ 10,000/- on the Assessing Officer personally for not having complied with the said order of the Appellate Authority dated 16.11.2001. There do not appear to be any mala fides on the part of the Officer. He passed an order which is incorrect. A mere incorrect order ought not to invite penal consequences if made bona fide - appeal dismissed being not maintainable.

Summary

Issues:
- Proper procedure for refund disbursement
- Legality of the impugned order
- Limitation period for refund application
- Authority's power to consider limitation
- Power of CESTAT to impose costs

Analysis:

Issue 1: The appellant raised concerns regarding the adjudicating authority's compliance with the established procedure for disbursing refund from the government exchequer. The High Court found that the Assessing Authority had erred in rejecting the refund application as barred by limitation under Section 11-B of the Central Excise Act, despite an earlier order by the Appellate Authority allowing the refund. The Assessing Authority was obligated to adhere to the Appellate Authority's decision, which had attained finality, indicating a failure to follow proper procedure.

Issue 2: The legality of the impugned order dated 29.10.2015 was questioned by the appellant, alleging perversity, illegality, and untenability. The High Court determined that the order was flawed due to the Assessing Authority's disregard of the final decision of the Appellate Authority, leading to an incorrect rejection of the refund application. Consequently, the impugned order was found to be unsustainable in the eyes of the law and liable to be set aside.

Issue 3: The question of whether the refund application was time-barred under Section 11-B of the Act was raised. The High Court noted that the Assessing Authority's rejection on grounds of limitation was erroneous since the Appellate Authority's prior decision had resolved the matter. The subsequent appeal for refund under Section 11-B was deemed unnecessary, as the original order had already been finalized, rendering the limitation argument moot.

Issue 4: The authority's power to consider the limitation of the refund claim application was scrutinized. The High Court clarified that the Assessing Authority was not empowered to revisit the limitation issue once the Appellate Authority had ruled on the matter conclusively. The Assessing Authority was obligated to abide by the Appellate Authority's decision, precluding any independent assessment of the limitation aspect.

Issue 5: The power of CESTAT to impose costs on the adjudicating authority was deliberated. The Tribunal had imposed a cost on the Assessing Officer for non-compliance with the Appellate Authority's order. The High Court, while acknowledging the officer's lack of malice, emphasized that penal consequences should not arise from a bona fide but incorrect decision. Consequently, the High Court admitted the appeal on this issue and set aside the order imposing costs on the Officer.

In conclusion, the High Court disposed of the appeal, upholding the appellant's contentions regarding the procedural irregularities, illegality of the impugned order, and the imposition of costs on the Assessing Officer. The judgment clarified the authority's obligations in adhering to final decisions and underscored the importance of procedural compliance in refund matters.