9911796707
TMI Blog2023 (1) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in connection with the refund claim of Rs. 1,95,37,953/- in Service Tax Appeal No. 843 of 2012 and no appeal was filed in relation to the refund claim of Rs. 25,18,316/- and Rs. 24,32,609/- which were the subject matter of Service Tax Appeal No. 845 of 2012, and Service Tax Appeal No. 844 of 2012 presumably for the reason that the amount involved was below the monetary limit fixed by the Government for filing appeal. However, what needs to be noticed is that the Tribunal had passed a common order and it is this order which was in appeal before the Madhya Pradesh High Court. The findings of the Tribunal have been reversed and the order passed by the adjudicating authority has been upheld. It cannot, therefore, be urged by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting the application filed by the appellant for rectification of mistake in the earlier order dated March 02, 2020 passed by the Additional Commissioner has been upheld, and the appeal has been dismissed. The amount of refund involved in this appeal is Rs. 24,32,609/-. 3. It transpires from the record that the appellant was getting supply of gas used as fuel in its factory through pipeline set up by the Gas Authority of India Limited [ GAIL ]. As supply of gas through pipeline is a taxable service under the provisions of the Finance Act, 1994 [ the Finance Act ], GAIL charged service tax. The rate for supply of gas was determined by the Petroleum and Natural Gas Regulatory Board [the Board]. Thus, GAIL charged provisional rates subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficate issued by the Chartered Accountant would show that the concept of undue enrichment would not apply. The accounts of the appellant for this purpose were, therefore, direct to be verified by adjudicating authority and the Tribunal after setting aside the impugned order passed by the Commissioner (Appeals), remanded the matter to the adjudicating authority for a fresh decision. It further transpires that the Department filed an Appeal bearing no. 96 of 2018 before the Madhya Pradesh High Court against the decision of the Tribunal insofar as it concerned the refund involving Rs. 1,95,37,953/- in Service Tax Appeal No. 843 of 2012. The Madhya Pradesh High Court allowed the appeal filed by the Department by judgment dated August 28, 2019 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment to such fertilizer manufacturers. The Noticee have not provided any documentary proof to show that while working out the cost of production of their product and claiming subsidy from Government, they have not added, in the cost of production of their product, the element of Service Tax which sought to be refunded. Hence, the assertion of the Noticee that they have themselves borne the incidence of tax is not acceptable as not supported by documentary evidence, therefore, refund cannot be granted to the Noticee . 25. When the findings, rather conclusions only, in paragraph 6 of the impugned judgment are tested on the anvil of above analysis, it leaves no iota of doubt that the Tribunal has grossly erred in law in holding that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject the refund applications. 7. The appellant thereafter filed applications for rectification of mistake in the order dated October 01, 2010 and October 04, 2010 passed by the Additional Commissioner rejecting the two refund claims. These two applications were rejected by two separate orders dated July 27, 2020 holding that there was no mistake apparent from the record which needed to be rectified and, in fact, the arguments which were advanced could be raised by the appellant it filed an appeal before the Tribunal. 8. Feeling aggrieved, the appellant filed two appeals before the Commissioner (Appeals), who, by a common order dated May 03, 2021, rejected both the appeals and upheld the order passed by the adjudicating authority. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n error apparent from the face of record which needed to be rectified. The submission advanced was, therefore, Commissioner (Appeals) committed an illegality in upholding the order passed by the Additional Commissioner. 11. Dr. Radhe Tallo, learned authorized representative appearing for the Department, however, supported the impugned order. 12. It is not possible to accept the contentions advanced by the learned counsel for the appellant. It is not in dispute that the issues that arose in all the three appeals were identical. It is true that the Department had filed one appeal only before the Madhya Pradesh High Court in connection with the refund claim of Rs. 1,95,37,953/- in Service Tax Appeal No. 843 of 2012 and no appeal was file ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
