2009 (12) TMI 403 - AT - Service Tax

Maintainability- present appeal against order dismissing appeal as not maintainable against such letter from department. Held that- impugned order holding appeal as not maintainable against letter sustainable.

Summary

Issues:
Appeal against rejection of refund claim, maintainability of appeal against a letter, pending show cause notice regarding demand.

Analysis:
1. Appeal against rejection of refund claim: The Appellant filed a refund claim of Rs. 2,38,889 which was rejected by the adjudicating Authority. The Appellant then filed an Appeal against this rejection order, which was subsequently dismissed. The Appellant further appealed before the Tribunal against the Order-in-Appeal, which is still pending. During this process, the Appellant raised queries regarding pending demand, to which the Assistant Commissioner responded via a letter dated 22-1-2009. The Commissioner (Appeals) rejected the Appellant's Appeal against this letter, stating that the issue had already been decided in a previous order. The Appellant argued that there was no pending show cause notice regarding the demand, leading to the rejection of the refund claim. However, the Tribunal found no fault in the Commissioner's decision and dismissed the Appeal.

2. Maintainability of appeal against a letter: The crux of the issue lies in whether an appeal can be filed against a letter from the Assistant Commissioner informing the factual position. The Commissioner (Appeals) held that the Appeal was not maintainable as the matter had already been decided in a previous order. The Tribunal concurred with this view, emphasizing that the impugned order was based on the Assistant Commissioner's communication and that the refund rejection by the lower Authority had a separate appeal pending before the Tribunal. Therefore, the Tribunal upheld the decision that the Appeal against the letter was not maintainable.

3. Pending show cause notice regarding demand: The Appellant's primary contention was the absence of a pending show cause notice regarding the demand, leading to the rejection of the refund claim. The Tribunal noted that the refund rejection was based on the lower Authority's decision, and the Appellant's appeal against it was already pending. The Commissioner (Appeals) found no merit in the Appellant's argument and held that the Appeal against the letter from the Assistant Commissioner was not maintainable. Consequently, the Tribunal dismissed the Appeal, affirming the Commissioner's decision.

In conclusion, the Tribunal dismissed the Appeal filed by the Appellant against the rejection of the refund claim, upholding the Commissioner (Appeals)' decision that the Appeal against the letter from the Assistant Commissioner was not maintainable. The issue of the pending show cause notice regarding the demand was considered, but the Tribunal found no grounds to overturn the lower Authority's decision.