9911796707
TMI Blog2022 (5) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice, dated 20.02.2020. 3. Mr. Puneet Agarwal, who appears on behalf of the petitioner, says that, the impugned order and show cause notice are flawed, broadly, for the following reasons: (i) The impugned order, dated 30.06.2020, was passed by an officer who had no jurisdiction to pass the said order. According to Mr. Agarwal, demand for service tax in excess of Rs.50,00,000/- could have been adjudicated upon only by Additional/Joint Commissioner or a Commissioner [if the demand exceeds Rs.2,00,00,000/-]. (ii) In this behalf, Mr. Agarwal has relied upon paragraph 11.1 of the Central Board of Excise and Customs (CBEC) circular bearing no. 1053/02/2017-CX, dated 10.03.2017. (iii) No pre-show cause notice consultation was carried out, although, the demand was over Rs.50,00,000/-, which was a requirement of paragraph 5 of the aforementioned circular dated 10.03.2017 (iv) No hearing was given to the petitioner prior to passing of the impugned order. (v) The impugned order has gone beyond the order of remand, passed by the Commissioner, Appeals-I, GST, Delhi [hereafter referred as 'Commissioner (Appeals-I)'], dated 30.05.2019. (vi) According to Mr. Agarwal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue, in their counter-affidavit, apart from anything else, will also indicate the amount that has already been paid by the petitioner towards service tax and cess, during the relevant period(s) i.e., October 2016 to March 2017 and April 2017 to June 2017. 5.3. The counter-affidavit will also indicate the liability towards service tax and cess, which the petitioner, according to the respondent/revenue, is mulcted with, as per the ST-3 return. 6. In the meanwhile, there shall be a stay on the operation of the impugned order, dated 30.06.2020. 7. List the matter on 03.12.2021." 2. The respondent/revenue entered appearance in the matter on 03.12.2021, when opportunity was granted to the petitioner to file a rejoinder to the counter-affidavit filed by the respondent/revenue. 2.1. Thereafter, the matter was taken up on 08.04.2022. On that date, after hearing the learned counsel for the parties, a brief order was passed, wherein, inter alia, it was recorded that the period in issue, in respect of which refund is sought, along with interest, by the petitioner, concerns October 2016 to March 2017 and April 2017 to June 2017. 2.2. Furthermore, a reference was also made to the coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d utilized towards payment of tax liability, details of which are as under: TABLE-II (Amount in Rs.) CESS AMOUNT OF CESS ACTUALLY PAID AMOUNT UTILIZED UNUTILIZED AMOUNT KRISHI KALYAN CESS 1807727 862480 945247 SWACHH BHARAT CESS 1886915 958632 928283 TOTAL 3694642 1821112 1873530 8. The Appellants have thus claimed that unutilized cess amount was only Rs.18,73,530/- and not Rs.36,94,642/- , as held by the Adjudicating Authority. Thus, the refund of Rs. 18,21,112/- more was required to be sanctioned by AA even if cess was not refunded. Further, the appellants have claimed that refund of cess could not be rejected since Section 119 & 161 of Finance Act, 2015 and Finance Act 2016 respectively provide that provisions of Chapter V of the Finance Act, 1994 (relating to Service Tax) including those relating to refunds apply to Swachh Bharat Cess and Krishi Kalyan Cess respectively. 9. On perusal of para 8 (2) of the impugned O-I-O it is seen that, the AA has rejected the cess amount of Rs.36,94,642/- stating "I find that, the admissible refund claim comes to Rs. 2,32,09,285/- out of Rs.2,69,03,927/- after deduction of cess amount of Rs. 36,94,642/". The AA has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the operative part of the said order, the adjudicating authority issued the following directions: "(i) I hereby reject refund claim of Rs.18,21,113/- (Service Tax) and Rs.18,73,530/- (SBC & KKC) to M/s. Delhi & District Cricket Association, Ferozshah Kotla Grounds, New Delhi. (ii) I order to recover Rs.2,15,39,257/- and Rs.1,03,05,282/- short paid by the assessee during the period April 2017 to June 2017. (iii) I order to recover Rs.3,38,363/- as SBC for the period April, 2017 to June, 2017 along with interest and penalty at applicable rates from the assessee. (iv) I order to recover penalty of Rs.9,100/- towards late filing of Service Tax returns for the period October 2016 to March 2017 and April 2017 to June 2017 by 88 days and 43 days respectively." 6. Mr Puneet Agarwal, who appears on behalf of the petitioner, says that no opportunity of hearing was provided to the petitioner. 6.1. It is also reiterated [and something which we had noticed in the proceedings held on 13.09.2021] that, although, the demand was more than Rs.50,00,000/-, no consultation prior to issuance of show-cause notice took place in the instant matter, contrary to the provisions of the master c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsultation notice prior to the issuance of the impugned show-cause notice dated 20.02.2020 was issued; something which is completely contrary to the provisions of the master circular dated 10.03.2017. 9.2. It is also not disputed that before passing the impugned assessment order dated 30.06.2020, no personal hearing was granted to the authorized representative of the petitioner. 10. This apart, the impugned order has clearly gone beyond the directions contained in the order of remand i.e., order dated 30.05.2019, passed by the Commissioner (Appeals-I). 10.1. The Commissioner (Appeals-I) had remanded the matter to the adjudicating authority via order dated 30.05.2019, on two counts. First, that no reason furnished, as to why refund of Rs.36,94,642/- was not accorded. Second, as to why interest ought not to be paid to the petitioner on the amount which had already been sanctioned towards refund i.e., Rs.2,32,09,285/-. 10.2. Instead of confining itself to these aspects of the matter, the adjudicating authority, inexplicably, reopened the entire assessment proceedings and concluded that there was short payment of tax. Resultantly, there are, in effect, two Orders-in-Original. 10.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the 1944 Act). 12.3. In our opinion, there cannot be any estoppel against a statute. Once the statute provides for payment of interest and the stipulated conditions are fulfilled, the respondent/revenue would be obliged, in law, to pay the interest. 13. The argument that Mr Amritanshu has advanced on behalf the respondent/revenue, that the copy of the Personal Ledger Account (PLA) was not submitted by the petitioner, in our view, is completely untenable, as it is not in dispute that the petitioner has provided the challans against which tax and cess had been deposited by it. 13.1. Therefore, according to us, the amounts claimed were clearly verifiable by the respondent/revenue. 14. Thus, for the foregoing reasons, the writ petition is allowed with the following directions: (i) The respondent/revenue will pay interest on Rs.2,32,09,285/- at the rate of 6% p.a. (simple), commencing from 02.02.2018 till the date of payment i.e., 03.01.2019. (ii) The respondent/revenue will remit to the petitioner the excess amount paid towards tax and cess i.e., Rs.36,27,615/- (Rs.36,94,642 less Rs.67,027/, which, according to the petitioner was a calculation error[1]). (iia) This amount w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
