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2019 (1) TMI 184 - AT - Service TaxRecovery of amount of refund wrongly sanctioned - section 84 of the Finance Act, 1994 - Held that - Once an Order-in- Appeal has been passed, the original order ceases to exist as it merges with the Order-in-Appal and therefore no portion of that original order can be revised. In this case, since the Commissioner (Appeals) has passed Order-in-Appeal, the Commissioner could not have, thereafter, passed an order in revising the Order-in-Original passed by the Asst. Commissioner. The Order-in-Revision No. 2/2010 is therefore unsustainable and needs to be set aside. Adjustment of a refund sanctioned against the aforesaid demand - Held that - At the time of passing the order, no appeal was filed by the appellant against Order-in- Original No. 2/2010 ST, dt. 26.02.2010. The Order-in-Original adjusting the amount was passed on 27.09.2010 and the appeal has been filed by the appellant only in October 2010. Further, a period of six months had already elapsed and the appellant had not submitted any documents to show that an appeal has been filed against Order-in-Original No. 2/2010 ST, dt. 26.02.2010. However, we have now set aside Order-in-Original No. 2/2010 ST, 26.02.2010 in appeal No. ST/2530/2010. Therefore, the amount of refund so adjusted is now payable to the appellant. Appeal disposed off.
Issues involved:
1. Jurisdiction of Commissioner under Section 84 of the Finance Act, 1994 to pass an Order-in-Revision after Order-in-Appeal. 2. Appropriation of refund against a demand confirmed by the Commissioner. 3. Rejection of refund claim on grounds of time limit and discrepancy in documents. Analysis: Issue 1 - Jurisdiction of Commissioner under Section 84: The appellant challenged an Order-in-Revision passed by the Commissioner of Customs & Central Excise revising the Order-in-Original (Refund) passed by the Assistant Commissioner. The appellant argued that once an Order-in-Appeal is passed, the original order ceases to exist and cannot be revised. Citing the High Court ruling in Union of India vs. Inani Carriers, it was contended that the Commissioner had no jurisdiction to pass an Order-in-Revision after an Order-in-Appeal. The Tribunal agreed with this argument and set aside the Order-in-Revision, holding it to be unsustainable. Issue 2 - Appropriation of refund against confirmed demand: The second appeal related to the appropriation of a refund amount against a demand confirmed by the Commissioner. The appellant contended that the adjustment was impermissible as they had filed an appeal against the demand, and a stay was granted. The Department argued that the appellant had not provided evidence of filing an appeal before the adjustment was made. The Tribunal found that the adjustment was incorrect as the Order-in-Revision was set aside in the first appeal, making the adjusted amount payable to the appellant. Issue 3 - Rejection of refund claim on grounds of time limit and discrepancy: Regarding the rejection of specific amounts in the refund claim, the Tribunal upheld the rejection of an amount filed beyond the one-year time limit from the export order date. Citing a Supreme Court judgment, the Tribunal interpreted the exemption notification strictly, denying the refund for this amount. Additionally, the rejection of an amount due to a discrepancy in the Port name between documents was upheld, as the documents must correlate for port services claims. In conclusion, the Tribunal allowed the first appeal, setting aside the Order-in-Revision, and partially allowed the second appeal by overturning the appropriation of the refund against the demand but upholding the rejection of certain refund amounts based on legal interpretations and documentary discrepancies.
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