2017 (10) TMI 138 - AT - Service Tax

Refund claim - erroneous deposit of service tax - Time Limitation - Section 11B of the CEA, 1944 - Held that - the Service Tax was paid under club or association services for which the appellant was registered but there is no finding on the appellant s plea that they are governed by principle of mutuality - The plea of the appellant that their case is covered by the case of Vidarbha Cricket Association Vs. CCE, Nagpur 2014 (1) TMI 204 - CESTAT MUMBAI (LB) has also not been discussed and no findings have been given on other judgment relied upon by the appellant - there has been partial application of mind at the level of the Ld. Commissioner (Appeals) in examining the entire issue - matter remitted back to the first appellate authority for fresh consideration denovo - appeal allowed by way of remand.

Issues:
1. Refund claim rejection on the grounds of time limitation.
2. Applicability of Service Tax on grants received from BCCI.
3. Mistake of fact in paying Service Tax under the wrong category.
4. Discrepancy in the findings of the Ld. Commissioner (Appeals).
5. Partial application of mind by the Ld. Commissioner (Appeals).

Analysis:
1. The appellant's refund claim of Service Tax amounting to &8377; 7,73,72,374 was rejected due to being time-barred. The appellant registered under various service categories paid the tax but later realized the error. Despite multiple reminders from the department regarding interest payment and non-submission of returns, the claim was rejected. The Tribunal found that the claim should be reconsidered by the First Appellate Authority.

2. The appellant argued that they received grants/subsidies from BCCI and were a charitable organization. They contended that they did not provide any taxable services to BCCI and paid the tax under a mistaken belief due to changes in the service tax law. The Tribunal noted discrepancies in the findings regarding the nature of services provided and directed a fresh examination considering all contentions and relevant agreements.

3. The Ld. Commissioner (Appeals) rejected the appellant's plea based on providing infrastructure support to BCCI as business support services. However, the Tribunal found a lack of clarity in the basis for this conclusion and discrepancies in identifying the mistake as one of fact or law. The Tribunal highlighted the need for a thorough examination of the case, including the principle of mutuality and relevant judicial pronouncements.

4. The Tribunal observed a partial application of mind by the Ld. Commissioner (Appeals) in analyzing the issues raised by the appellant. Important aspects such as the applicability of the principle of mutuality and judicial precedents were not adequately considered. As a result, the Tribunal set aside the previous order and remanded the matter for fresh consideration, emphasizing the need for a detailed examination of all contentions and supporting evidence.

5. The Tribunal allowed the appeal by way of remand, indicating a need for a comprehensive review of the case by the First Appellate Authority. The appellant was granted the opportunity to present their case fully, and the authority was directed to provide reasoned findings on all averments, considering the legal principles and judgments relevant to the matter.

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