2009 (10) TMI 248 - AT - Service Tax

Refund of service tax- The revenue filed this appeal against the impugned order whereby the refund in respect of service tax paid by the respondents is allowed. The Commissioner (Appeals) in the impugned order allowed the refund on the ground that the service provided by the respondents is not clearing and forwarding services in the view of the Larger Bench decision of the Tribunal in the case of Larsen & Toubro Ltd. v. CCE 2006 -TMI - 460 - Appellate Tribunal, New Delhi. In the light of the decision of Mafatlal Industries Ltd. v. Union of India 1997 (89) ELT 247, held that- the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide afresh after affording an opportunity of hearing to the respondents. The appeal is disposed of by way of remand.

Summary

Issues:
1. Whether the refund of service tax paid by the respondents is allowed.
2. Whether the refund application is maintainable based on the Larger Bench decision of the Tribunal.
3. Whether the refund application can be made on the basis of a decision of a Court or Tribunal in another person's case.

Analysis:
1. The revenue appealed against the order allowing the refund of service tax paid by the respondents, contending that the service provided was clearing and forwarding services. The respondents claimed the refund based on a Tribunal decision and the fact that they are not providing clearing and forwarding services. The Tribunal noted the revenue's argument that the refund application was not maintainable as the respondents had paid tax as clearing and forwarding service providers.

2. The Tribunal referred to the Supreme Court's decision in Mafatlal Industries Ltd. v. Union of India, stating that a person cannot claim a refund based on another person's case's decision. The Tribunal also mentioned the decision in CCE v. Southern Asbestos Industries, emphasizing that a person must fight their own legal battles. The respondents cited a decision of the Rajasthan High Court in Central Office, Mewar Palace Org. v. Union of India, which the Tribunal found to be without considering the Supreme Court's decision in Mafatlal Industries Ltd. Considering these legal precedents, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for reconsideration.

3. The Tribunal concluded that the matter required reconsideration in light of the decisions of the Supreme Court, High Court, and Tribunal. It directed the Commissioner (Appeals) to decide afresh after providing an opportunity for the respondents to be heard. The appeal was disposed of by way of remand, emphasizing the need for a fresh decision based on the legal principles discussed.