2019 (11) TMI 562 - AT - Service Tax

100% EOU - Refund of service tax - export of services - applicability of Section 11B of the Central Excise Act, 1944 - HELD THAT - This Bench after considering the plea of the Ld. Consultant Shri. S. Ramachandran that the payment of service tax in respect of Renting of Immovable Property was by mistake however, concluded, that the refund could not be claimed under Rule 5 ibid - It is surprising to note as to how the adjudicating authority chose to read conclusion as direction, which was not there, in her order dated 31.10.2017 as to the filing of a separate claim under Section 11B ibid. She has also gone farther, when she concludes that clause (ec) to Explanation B of Section 11B ibid would come to the rescue of the appellant. The appellant consciously filed its application for refund under Rule 5 ibid and even though there were no such directions by this Bench, it impressed upon the adjudicating authority to obtain an order and succeeded. The appellant taking a cue from the earlier order of this Bench that Rule 5 ibid could not be invoked, chose to file an application under Section 11B ibid. It is intriguing to find that no appeal was filed against the first order of this Bench which rejected the appellant s claim made under Rule 5. However, in the subsequent order of this Bench which has been extensively relied by the appellant, this Bench has concluded that the denial of refund under Rule 5 of the CCR, 2004 was not justified. Appeal dismissed.

Summary

Issues:
Appeal against rejection of refund claims under Rule 5 of CENVAT Credit Rules, 2004, for service tax paid by the assessee for Renting of Immovable Property Service provided by its Director. Entertaining refund claim under Section 11B of the Central Excise Act, 1944. Dispute over the authority's decision to entertain the claim under Section 11B. Review of Orders-in-Original by the Revenue. Allegations of misinterpretation and misdirection by the adjudicating authority. Failure to appeal earlier order rejecting the claim under Rule 5. Lack of reference to previous orders by the appellant and the bench in subsequent proceedings.

Analysis:
The appellant, a 100% Export Oriented Unit (EOU) providing software-enabled services, filed refund claims under Rule 5 of CENVAT Credit Rules, 2004, for service tax paid on Renting of Immovable Property Service by its Director. The claim was rejected as ineligible, leading to appeals against Order-in-Appeal Nos. 170 & 171/2018. The appellant then filed refund claims under Section 11B of the Central Excise Act, 1944, which were initially entertained by the adjudicating authority but later reviewed by the Revenue. The Commissioner (Appeals) allowed the Revenue's appeals, prompting further legal action.

During the proceedings, the appellant argued that the rejection of the refund under Rule 5 was improper based on previous bench orders. The appellant highlighted discrepancies in the adjudicating authority's interpretation and application of the law. The Revenue contended that Section 11B had no role as the initial claim was under Rule 5 due to export services. The first appellate authority supported the Revenue's position.

The tribunal scrutinized the contentions, previous bench orders, and the application of law. It noted the appellant's selective reliance on bench orders and the failure to appeal the initial rejection under Rule 5. The tribunal found discrepancies in the adjudicating authority's actions and the subsequent proceedings. Despite the appellant's arguments, the tribunal upheld the decision to dismiss the appeals, citing no merit in the claims and no infirmity in the impugned order.

In conclusion, the tribunal dismissed the appeals, emphasizing the importance of consistent legal arguments, proper application of law, and adherence to procedural requirements. The judgment highlighted the need for thorough review and reference to previous orders in legal proceedings to ensure a fair and accurate decision-making process.