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TMI Blog2024 (5) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim was rejected by the Original Adjudicating Authority on the ground that the appellant has adjusted a part of the credit taken. On appeal, the Commissioner (Appeals) vide Order-in-Appeal No. 594/2018 dated 19.12.2018, had rejected their appeal upholding the Order-in-Original, which was remanded by the CESTAT for denovo consideration. The stage at which these proceedings are pending is not coming out from the facts in this appeal. The decision of the Lower Appellate Authority affirmed holding that the appellant is eligible for adjustment of the service tax liability on the subsequent supplementary invoice raised against the excess service tax paid on the original supplementary invoices which were not paid by their customer Viz., M/s. Tata Steel Limited. It is found that the appellant has submitted Chartered Accountant s Certificate to the effect that they have cancelled 3 supplementary invoices raised originally and that they have not received any consideration in respect of these invoices. The impugned Order-in-Appeal is not sustainable and ordered to be set aside - Appeal allowed. - HON BLE MR. VASA SESHAGIRI RAO , MEMBER ( TECHNICAL ) For the Appellant : Ms. P. Jaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84/- and Rs.15,743/- towards excess Service tax, SBC and KKC paid in respect of sl. No.1 and 2 of the table in Para 2.1 above and utilised the same for payment of Service Tax for subsequent period under Rule 6(3) of Service Tax Rules,1994. As for excess payment of Service Tax and Cess in respect of Sl.No.3 of the said table, the appellant availed credit during March 2017 and utilised the same for payment of Service Tax for subsequent periods. 2.4 To pre-empt any possible denial of credit on excess paid service Tax and cess, the Appellant vide letter dated 21.03.2017 submitted a refund claim of 59,05,952/- under Section 11 B of the Central Excise Act, 1944 as made applicable under Section 83 to Finance Act, 1994. The refund claim was processed and decided separately. An Order-in-Original No. 28/2018 was passed by the adjudicating authority rejecting the refund claim on the ground that the amount claimed as refund was already adjusted by the Appellant. Upon appeal by the Appellant, the Commissioner (Appeals) vide Order-in-Appeal No. 594/2018 dated 19.12.2018 rejected the appeal and upheld the Order-in-Original. On further appeal, the Hon ble CESTAT vide Final Order No. 41276/2019 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn submitted on 25.04.2017. (ii) The impugned SCN was time barred and legally not sustainable as the SCN was issued only as an afterthought after passing of the Order-in-Original and Order-in-Appeal rejecting the refund claim of the appellant on the grounds that the amount claimed as refund was already adjusted by the Appellant. (iii) It was submitted that the first appellate authority as well as the original adjudicating authority had erred in passing the impugned orders solely on revenue consideration instead of going into the facts and merits of the case. (iv) It was pointed out the Adjudicating Authority ignored the Final Order No. 41276/2019 dated 13.11.2019 of the Hon ble CESTAT wherein it was observed that the Appellant was confining the refund claim to only one invoice to the tune of Rs.47,21,090/- while the other two were adjusted and hence remanded the matter directing the Original authority for de-novo adjudication of the refund claim which was not taken up even after 3 years of the said order. Instead, the adjudicating authority has initiated proceedings for the recovery of excess payment of Service Tax availed as credit which was partly adjusted towards the Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was upheld by the Commissioner (Appeals). Hence this appeal. 2. On behalf of the appellant, Ld. counsel Shri S. Muthu Venkatraman submitted that the appellant is confining the contest of refund in the present appeal to one invoice which is to the tune of Rs.47,21,090/-. The contest with regard to other two invoices is given up by the appellant since the amount has already been adjusted to the future credit of the customer. 7. On perusal of the order-in-original passed by the original authority, it is seen that the appellant was given date for personal hearing. Later as there was no representation the matter was decided exparte. In appeal, the Commissioner (Appeals) has considered the issue on merits and thereafter rejected the refund claim. However, it is contented by the appellants that they had furnished Chartered Account certificate before the Commissioner (Appeals) to adjudge the issue of not having passed on the burden of duty incidence to another person and also that they have paid excess amount in terms of packaging charges. On-going through the impugned order, it is seen that COMMISSIONER (Appeals) has not considered the Chartered Accountant certificate alleged to be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of refund or otherwise is not the issue in this appeal. 11. In this appeal, only the issue of legality of adjustment of service tax liability from the credit availed in terms of Rule 6(3) of Service Tax Rules, 1994, is being examined. The Original Adjudicating Authority has demanded service tax amount of ₹11,35,700/- under Section 73 of the Finance Act, 1994 along with interest and also imposed penalty under section 76 of the Act ibid after arriving at a decision that excess payment of service tax paid by the appellant originally on the 3 supplementary invoices raised, would not come under the category of excess payment and as the appellant have adjusted future service tax liability in the subsequent invoice, the demand raised was confirmed. 12. After going through the appeal records, it is not in dispute that there is an excess payment of service tax of Rs.59,05,952/- from the 3 supplementary invoices and out of it, the credit availed on service tax excess paid on the 2nd and 3rd supplementary invoice was adjusted by the appellant towards the service tax liability on the revised supplementary invoice raised. The only reason for rejecting the appeal by the Lower Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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