2018 (8) TMI 1288 - AT - Service Tax

Recovery of amount refunded - duty was paid under protest - Section 11B of Central Excise Act - recovery sought on the ground that the Department has filed appeal before the Hon ble Apex Court - scope of SCN - Held that - The original order as well as the appellate order, both have been passed on a ground which is not stated in the show-cause notice and therefore, the demand cannot be confirmed on the basis of a ground which is beyond the scope of show-cause notice. Further the Department did not file any appeal against the Order-in-Original No.51/2005 dt. 25/05/2005 granting refund to the appellant which has attained finality and cannot be offset by demand of refund on the ground that it is erroneous. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund of service tax erroneously paid by the appellant; rejection of refund claim by lower authorities; recovery of refunded amount; validity of demand based on show-cause notice; finality of refund order; grounds for confirming demand beyond show-cause notice.

Analysis:
The case involved an appeal against the rejection of a refund claim for service tax paid under protest by the appellant. The appellant had paid ?2,18,558 as service tax on goods transport operator services for a specific period. The refund claim was based on a retrospective amendment exempting certain services from service tax. The appellant relied on a judgment in the case of L.H. Sugar Factories Ltd. to support their claim. However, the department issued a show-cause notice proposing to recover the refunded amount, citing a pending appeal before the apex court. The original authority confirmed the demand, stating that the service tax was paid under validation provisions, not against a show-cause notice under Section 73. The Commissioner (Appeals) upheld this decision, leading to the present appeal.

The appellant argued that the impugned order was unsustainable as it did not consider the facts and law properly. They contended that the recovery of the refunded amount was beyond the scope of the show-cause notice. The appellant highlighted that the Supreme Court had dismissed the department's appeal in a related case, rendering the basis for the recovery invalid. They relied on various decisions to support their argument that demands cannot be confirmed based on grounds outside the show-cause notice. Additionally, the appellant pointed out that the department did not appeal the original order granting the refund, which had attained finality, making the current proceedings legally untenable.

The appellate tribunal, after hearing both sides and examining the records, found merit in the appellant's arguments. They noted that the demand was based on grounds not mentioned in the show-cause notice and that the department had not appealed the original refund order. Citing relevant legal precedents, the tribunal concluded that the impugned order was unsustainable. Consequently, they set aside the order, allowing the appeal of the appellant and granting any consequential reliefs. The tribunal's decision was pronounced in open court on 31/07/2018.