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2017 (5) TMI 660 - HC - Service TaxMaintainability of appeal - alternative statutory remedy - Whether the CESTAT erred in upholding the denial of refund claimed by the appellant for the period 16.10.1998 to 01.09.1999 in respect of service tax paid by it? - Held that - It is seen that the Petitioner was before the Supreme Court with its petition under Article 32 of the Constitution, which was a remedy available to the Petitioner and rightly availed by it. Merely because it did not choose to exhaust a statutory remedy which was also available, does not preclude the Appellant from seeking legal redress by filing a writ petition directly in the Supreme Court - the Court answers the above question in the affirmative by holding that the CESTAT erred in upholding the denial of refund claim by the Appellant for the period 16th October, 1998 to 1st September, 1999 in respect of service tax paid by it on the clearing and forwarding services availed by it - refund allowed. - appeal allowed - decided in favor of appellant.
Issues:
- Appeal against final order dated 20th September, 2016 passed by CESTAT dismissing appeal No.ST/A/53726/2016-CU(DB) - Refund claim of service tax paid during the period 16th July, 1997 to 30th September, 1999 - Retrospective amendments to overcome Supreme Court judgment in Laghu Udyog Bharti case - Constitutional validity of amendments validated by Supreme Court in The Associated Cement Cos. Ltd. case - Clarifications on tax liability for services rendered by goods transport operators and clearing and forwarding agents - Denial of refund claim by Commissioner (Appeals) and CESTAT for the period 16th October, 1998 to 1st September, 1999 Analysis: 1. The appeal was filed against the final order of CESTAT dismissing the appeal regarding a refund claim of service tax paid by the Appellant for services received between 16th July, 1997 and 30th September, 1999. The Appellant contended that the service tax paid during this period should be refunded based on certain legal developments. 2. Following a Supreme Court judgment in Laghu Udyog Bharti case, the Appellant filed a refund claim of the service tax paid. However, the refund claim was rejected on the grounds of unjust enrichment by the Assistant Commissioner, who directed the amount to be transferred to the Government welfare fund. 3. Subsequently, retrospective amendments were made to the Finance Act, 1994 to address the impact of the Supreme Court judgment in Laghu Udyog Bharti case. Despite these amendments, the Commissioner (Appeals) dismissed the Appellant's appeal, upholding the rejection of the refund claim. 4. The constitutional validity of the amendments was upheld by the Supreme Court in The Associated Cement Cos. Ltd. case. The Court clarified the tax liability for services rendered by goods transport operators and clearing and forwarding agents for specific periods, providing exemptions and limitations on tax liability. 5. The Court, after detailed analysis, held that the CESTAT erred in upholding the denial of the refund claim for the period 16th October, 1998 to 1st September, 1999. The orders of the Commissioner (Appeals) and CESTAT were set aside, and the appeal was allowed with directions for the Respondent to refund the amount due with interest within a specified period. 6. The Court emphasized the strict application of the law as explained by the Supreme Court in its previous judgments and orders, ensuring that the Appellant is entitled to the refund based on the legal developments and clarifications provided by the higher courts.
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