2019 (9) TMI 955 - HC - Service Tax

Refund claim - alternate remedy of appeal - disputed question of facts involved - HELD THAT - The Commissioner has stated that in absence of original documents, the claim could not have been processed. The list of documents relied upon by the Petitioner in this Petition shows that there were copies and not the original - Apart from this position, it cannot be said that there is any consensus as regard the fact that the necessary original documents were submitted by the Petitioner and were lost by the Respondent Department - This aspect, in view of the statements in the impugned order and the affidavit-inreply, is a disputed question of fact. Alternate remedy - HELD THAT - Section 35 of the Central Excise Act provides an appeal to the Commissioner - Appeals. There is no dispute that the impugned order passed by the Assistant Commissioner is appealable under Section 35 to the Commissioner - Appeals. Therefore, this disputed question of fact has to be decided in the statutory appeal provided under Section 35 of the Act. Thus, on both counts, that the Petition involved disputed question of fact and that a statutory remedy of appeal is available to the Petitioner, we are not inclined to exercise our writ jurisdiction - petition rejected.

Summary

Issues:
Challenge to Order-in-Original rejecting refund claim; Invocation of writ jurisdiction despite alternate appeal remedy under Section 35 of Central Excise Act, 1994; Dispute over submission of original documents for refund claim.

Analysis:
The Petitioner challenged the Order-in-Original rejecting the refund claimed, arguing for writ jurisdiction despite the availability of an appeal under Section 35 of the Central Excise Act, 1994. The Petitioner, a company providing customer services, filed refund applications for CENVAT Credit availed on input services used in export of business auxiliary services. The Commissioner rejected the claim, citing lack of original input and output invoices and other necessary documents. The Assistant Commissioner held that the Petitioner failed to fulfill the basic conditions of Rule 5 of the CENVAT Credit Rules, 2004 and Rule 6A of Service Tax Rules, 1994, leading to the rejection of the refund claim amounting to ?3,32,77,659.

During the hearing, the Petitioner's counsel argued that the original documents submitted were lost by the Department, leaving the Petitioner with no option but to seek writ jurisdiction. However, the Assistant Commissioner denied misplacing the documents and stated that no details of original documents were provided by the Petitioner. The Court observed that a factual inquiry was needed to determine whether the original documents were submitted and if they were relevant for the refund claim as per the law. Given the disputed facts and the availability of an appeal under Section 35 of the Act, the Court declined to exercise its writ jurisdiction.

The Court emphasized that the disputed question of fact should be resolved through the statutory appeal process available under Section 35 of the Central Excise Act. Consequently, the Writ Petition was rejected, with the Petitioner advised to file an appeal before the Commissioner of Appeals within 60 days for consideration on its merits. The Civil Application was disposed of accordingly, following the dismissal of the Writ Petition.