2017 (9) TMI 28 - AT - Service Tax

100% EOU - refund of unutilised CENVAT credit - rejection of refund on the ground that appellants on their own volition had apportioned certain amount of service tax initially claimed by them under the head Telephone and Erection under a totally new head Manpower Supply Service , which was not claimed by them at any point of the proceedings starting from the initial refund claims till the end of the proceedings - Held that - Both the original authority and the ld. Commissioner (Appeals) have very correctly rejected the claims of refund of service tax initially claimed by the appellants under the head Telephone and Erection , when the appellants have subsequently changed the head to new Manpower Supply service on their own volition that after conclusion of the appeal proceedings, which by the act of not challenging it, they are deemed to have accepted the same - appeal dismissed - decided against appellant.

Summary

Issues:
Refund claims under Rule 5 of Cenvat Credit Rules, 2004 rejected by original authority; Partial allowance of refund by lower Appellate authority; Rejection of claim on "Manpower Supply" by original authority; Upholding of original authority's decision by ld. Commissioner (Appeals).

Analysis:
The case involves the appellants, a 100% EOU engaged in manufacturing cut and polished Granite monuments, who filed refund claims under Rule 5 of Cenvat Credit Rules, 2004, seeking refund of unutilized Cenvat credit. The original authority rejected three such claims, leading the appellants to appeal before the ld. Commissioner (Appeals). The lower Appellate authority partially allowed the appeals, permitting refund of service tax credit related to inward transportation of goods and security service but disallowing refund for other services like erection, telephone service, and outward transportation. This decision was accepted by the department and not challenged by the appellants. Subsequently, the appellants filed refund claims before the original authority, focusing on the portion allowed by the ld. Commissioner (Appeals) and submitted service-wise worksheets to support their claim.

During the process, the original authority sanctioned certain amounts but rejected the claim related to "Manpower Supply" service. The rejection was based on the appellants' voluntary reclassification of service tax initially claimed under "Telephone and Erection" to a new category of "Manpower Supply Service," which was not part of their original claim throughout the proceedings. The ld. Commissioner (Appeals) upheld the original authority's decision, leading to the current appeals.

In the hearing, the ld. Advocate for the appellants reiterated the grounds of appeal, while the ld. AR representing the respondent opposed the appeals, highlighting that the appellants did not raise the issue of "Manpower Supply" at any stage before the original authority or the ld. Commissioner (Appeals). The Member (T) of the Appellate Tribunal found merit in the argument presented by the ld. AR, emphasizing that the appellants' change in classification post-appeal proceedings implied acceptance of the new categorization. Consequently, both appeals filed by the appellants were rejected, affirming the decisions of the original authority and the ld. Commissioner (Appeals).

This judgment underscores the importance of consistency in claim submissions throughout the legal proceedings and the implication of voluntary changes in categorization on the acceptance of refund claims. It establishes that failure to challenge decisions or raise issues at appropriate stages can impact the outcome of appeals, emphasizing the need for clarity and consistency in presenting claims before the authorities.