2017 (11) TMI 1252 - AT - Service Tax

Refund of excess paid service tax - The impugned order held against the appellant only on the ground that the original authority should have awaited the outcome of appeal filed by the Revenue against order dated 30.08.2012 of the Commissioner - Held that - the said appeal has no direct relevance regarding the fact of excess payment by the appellant. Even otherwise, the appeal by the Revenue was dismissed by the Tribunal, on 09.02.2017. As such we find no legal justification in the finding recorded by the Commissioner (Appeals) in the impugned order - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Discharge of Service Tax on provisional basis
2. Short payment and excess payment of Service Tax
3. Demand proceedings and appeal against finalization of provisional assessment
4. Refund claim and appeal against the sanction
5. Decision on the refund claim pending appeal by the Revenue
6. Legal justification for the refund sanctioned by the original authority

Analysis:
The case involved the appellant, engaged in providing insurance services, who discharged Service Tax on a provisional basis awaiting finalization of accounts for the period 2008-09 and 2009-10. It was found that there was a short payment of Service Tax during January 2009 and an excess payment during October 2008. A demand proceeding was initiated for the short payment, which was concluded by dropping penal action and interest. The appellant also filed a refund claim for excess payment, which was sanctioned by the original authority. However, the Revenue appealed against the sanction, arguing that the original authority should not have proceeded with the refund while their appeal was pending.

The Commissioner (Appeals) in the impugned order held that the original authority should have awaited the outcome of the Revenue's appeal before deciding on the refund. The appellant contested this, stating that there was no bar on the original authority to decide and sanction the refund, especially since the appeal by the Revenue had already been dismissed by the Tribunal. The Tribunal noted that the appeal by the Revenue had no direct relevance to the fact of excess payment by the appellant. As the Revenue's appeal had been dismissed, the Tribunal found no legal justification in the Commissioner's decision and set it aside, allowing the appeal.

In conclusion, the Tribunal ruled in favor of the appellant, stating that the excess payment of Service Tax was not in dispute and that the original authority was justified in sanctioning the refund. The Tribunal found no legal basis for the Commissioner's decision to hold the refund based on the pending appeal by the Revenue, especially since the Revenue's appeal had already been dismissed.