2012 (6) TMI 521 - AT - Service Tax

Refund time bar - Commissioner (Appeals) allowed the claim without time bar after holding that the amount paid by the party did not represent any tax - Commissioner (Appeals), in this connection, relied on the Board s Circular No. B/11/1/2002-TRU dated 01.08.2002 - Held that - no manner of challenge against the reliance placed by learned Commissioner (Appeals) on the Board s circular - application is dismissed.

Summary

Issues:
1. Stay of operation of appellate Commissioner's order granting refund without time bar.
2. Whether the claim for refund was time-barred.
3. Validity of reliance on Board's Circular and Tribunal's decision by the appellate Commissioner.

Analysis:
1. The case involved an application by the department seeking a stay on the appellate Commissioner's order granting a refund to the respondent without any time bar. The amount in question was paid as service tax before 19.11.2006 under "storage and warehousing services." In a previous round of litigation, the Commissioner (Appeals) had determined that the Central Warehousing Corporation did not provide storage and warehousing services. The payment made by them was deemed not acceptable as service tax, even under "renting and immovable property," as this service became taxable only from 01.06.2007. This decision was accepted by the Revenue as well.

2. In the subsequent round of litigation before the appellate Commissioner, the key issue was whether the claim for refund by the Central Warehousing Corporation was time-barred. The appellate Commissioner allowed the claim without any time bar, stating that the amount paid did not constitute any tax. The Commissioner relied on the Board's Circular No. B/11/1/2002-TRU dated 01.08.2002 and the Tribunal's decision in the case of Indian Ispat Works (P) Ltd. 2006 (3) S.T.R. 161 (Tri.-Del.). Notably, the Revenue did not challenge the reliance on the circular and the Tribunal's decision in their memo of appeal. The application seeking a stay on the appellate Commissioner's order was dismissed due to the absence of valid grounds for challenge.

3. The judgment highlighted the lack of challenge against the reliance on the Board's Circular and the Tribunal's decision by the appellate Commissioner. This omission, coupled with the absence of valid grounds in the application for a stay on the order, led to the dismissal of the department's application. The decision emphasized the importance of providing substantive grounds for challenging legal interpretations and decisions made by lower authorities in tax refund cases.