9911796707
TMI Blog2025 (3) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... by section 83A of the Finance Act 1994, as amended, read with Notification No. 30/2005-Service Tax dated 10.08.2005, as amended, and Notification No.16/2007-Service Tax dated 09.04.2007. 2.1 The brief facts of the case are that the appellants herein are engaged in the business of a banking company operating through various branch offices situated across India and having their head office in London, United Kingdom. The appellants provide various services to their customers such as Banking & other Financial Services, Business Auxiliary services, renting of immovable property services, cash management operations, utilities, loans processing, securities services, credit risk control, financial market operations and compliance & assurance, handling transaction processing activities across various product lines including credit cards, personal loans, current account and savings account, mortgage raising and corporate Finance solutions across all its domains. In order to comply with the service tax law, the appellants had taken centralized registration and holding service tax registration certificate No. AABCS4681DST003. 2.2 During the course of EA-2000 audit conducted by the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it cannot be processed. Accordingly, he held that the refund claim filed by the appellants is not admitted and is liable to be rejected as pre-mature. However, he gave an option to file the refund claim afresh in accordance with the decision that may be taken by the Commissioner of Service Tax-I, Mumbai in such disputed claim, upon adjudication of the SCN dated 08.10.2022. Being aggrieved with the said order dated 21.06.2013 of the original authority, the appellants had filed an appeal before the Commissioner (Appeals) on 23.08.2013. In deciding the appeal, the Pr. ADG in acting as the First Appellate authority, had passed the impugned order rejecting the appeal filed by the appellants and in upholding the order of the original authority. Feeling aggrieved with the impugned order, the appellants have filed this appeal before the Tribunal. 3.1 Learned Advocate appearing for the appellants had submitted that the disputed issue of demand of CENVAT credit on alleged exempt services under SCN dated 08.10.2022 was adjudicated by the Commissioner, Service Tax-IV Commissionerate, Mumbai in dropping the entire demand of Rs.86,70,43,899/- and did not impose any penalty. He further stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (CESTAT AHMEDABAD) (vii) Chambal Fertilizers & Chemicals Ltd. Vs. Commissioner of CGST, Udaipur - 2023 (71) G.S.T.L. (Tri. - Del.) (viii) Commissioner of C. Ex. Lucknow Vs. Eveready Industries India Ltd. - 2017 (357) E.L.T. 11 (All.) (ix) CBIC Circular No. 984/08/2014-CX dated 16.09.2014 (x) CBIC Circular No.802/35/2004-CX dated 08.12.2004 (xi) CBIC Instructions F. No. 275/37/2000-CX.8A dated 02.01.2002 4. Learned Authorized Representative (AR) appearing for Revenue, reiterated the findings made by the learned Pr. ADG in upholding the original order. He further stated that the appellants had submitted the refund application on 22.03.2013 in respect of the amount paid under protest, even before the issue in dispute could be adjudicated and therefore, he claimed that the impugned order upholding the original order of rejection of refund claim as pre-mature is proper and justified. 5. Heard both sides and perused the records of the case. We have also perused the additional written submissions presented in the form of paper books for this case. 6.1 The issue involved in this appeal is to determine whether the amount paid 'under protest' by the appellants in reversal of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such duty. "Section 11B. (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , whether such refund is to be credited to the Consumer Welfare Fund or it is to be paid to the claimant, upon examination of the issue, whether the refundable amount relates to the specified grounds itemized under proviso to sub-section (2) of Section 11B ibid including the issue of 'unjust enrichment angle'. 6.6 From the records placed in the case file, it is not in dispute that the amount of CENVAT credit of Rs.86,70,43,899/- was paid by the appellants under protest pursuant to audit objection and the payment of the same was communicated to the department on 14.03.2022. However, SCN was issued in this case on 08.10.2022 after the payment under protest and a proposal was also made for appropriation of such amount paid by the appellants towards demand of CENVAT credit. The application for refund in the prescribed Form-R was received by the department on 22.03.2023 and the grounds for refund specifically stated that the appellants is of the bonafide belief that the said amount paid in pursuance of audit objection ought not to be reversed and therefore they had filed such refund claim. However, the original authority did not decide the issue of refund claim in terms of Section 11B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 16.01.2017, and Revenue has nothing more to state as no appeal was filed against such order. In view of the above, we find that the issue with respect to demand of reversal of CENVAT credit against alleged exempted services had attained finality and there is no demand confirmed against such payment made by the appellants under protest. Therefore, we are of the considered view that the facts involved therein being germane to the issue of refund, these should have been dealt with by the first appellate authority in the impugned order, when the same were specifically brought to his attention during the personal hearing. On the other hand, the impugned order did not examine this aspect by specifically stating that the core issue of demand of CENVAT credit is legally sustained or not, is not being taken up for consideration by him in the impugned order. From the above it clearly transpires, that the impugned order has not followed the legal tenets laid down under Section 11B ibid in dealing with the claim for refund of duty/tax. Therefore, we are of the considered view that the impugned order is liable to be dismissed on this ground alone. 7. In this regard, we find that the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consummation disconnect is also perceptible. The claim having been filed and taken on record, its return can be said to be complete only when its custody is transferred back to the claimant. It is moot whether an order can render it to be so without the willing participation of the claimant in a custodial transaction. That the claimant has been pursuing appellate remedies is a clear indication of lack of such willingness. The orders of the lower authorities would appear to be no whit more than printing on a piece of paper. Can the physical existence of a refund application with the Commissionerate be erased or wished away by an adjudication order? Is there a process contra to revenue recovery that entails the might of the State being resorted to for reposing the custody in the applicant? It would appear not. The 'bell, book and candle' routine does not trespass into the temporal! Tax administrators exercising statutory authority should be cautious in staking the credibility of the institution that they represent. 8. That the appellant is not put to any disadvantage or detriment is not relevant to the circumstances. The claim itself is symptomatic of a lack of faith in the fairnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph of the said order is extracted and given below: "12. The issue as to whether unjust enrichment has to be examined while considering a claim for refund of an amount deposited during investigation or proceedings arose before the Madras High Court in Commissioner of Central Excise, Coimbatore v. Pricol Ltd.2015 (320) E.L.T. 703 (Mad.) Investigations revealed that the assessee had cleared waste and scrap without payment of duty. Adjudication proceedings were initiated but during the pendency of these proceedings, the assessee deposited Rs. 1.55 Crores. A show cause notice dated 2 December, 1998 was, thereafter, issued to the asseesee. After adjudication, the demand was confirmed by Order dated 11 May, 2001 and the amount of Rs. 1.55 Crores deposited by the assessee was directed to be appropriated. The assessee filed an Appeal against the aforesaid Order before the Tribunal. The Appeal was allowed by Order dated 17 December, 2004 and the Order passed by the Adjudicating Authority was set aside. The assessee thereafter filed a claim for refund of the deposit. The said refund was sanctioned by the Assistant Commissioner by Order dated 31 March, 2005. An Appeal was, however, filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Electricals (P.) Ltd. v. Cegat, New Delhi (1998 (102) ELT 522 (All.)), Parle International Ltd. v. Union of India (2001 (127) ELT 329 (Guj.)) and Commissioner of Central Excise, Chennai v. Calcutta Chemical Company Ltd. (2001 (133) ELT 278 (Mad.)) and the said view has also been maintained by the Supreme Court in Union of India v. Suvidhe Ltd. (1997 (94) ELT A159 (SC)). There are also very many judgments of various Courts, which have also reiterated the same principles that in case any amount is deposited during the pendency of adjudication proceedings or investigation, the said amount would be in the nature of deposit under protest and, therefore, the principles of unjust enrichment would not apply. In view of the catena of decisions, available on this issue, this Court answers the first substantial question of law against the Revenue and in favour of the assessee." (Emphasis Supplied) 13. A similar issue arose before the Allahabad High Court in EBIZ. Com Pvt. Ltd. v. Commissioner of Central Excise, Customs & Service Tax and Ors 2016 (9) TMI 1405 = 2017 (49) S.T.R. 389 (All.). The assessee was engaged in the business of developing and selling various online/offline educati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant paragraph is reproduced below : "10. It is clear that the Commissioner (A) dealt with two refund claims in respect of each of the appeal filed before him. The fact that the amounts were paid during investigation is not in dispute. The duty liability on the Respondents is settled consequent to Commissioner's order dated 6-10-2003 in respect of Appeal No. 44/05. But as regards Appeal No. 45/05, the Respondents filed the refund claim before the Asst. Commissioner as earlier as 9-11-2001 though the Commissioner passed his order on 27-2-2004. The point is that in respect of both the claims, the amounts were deposited during the course of investigation by the DRI. The Commissioner (A) has elaborately discussed the issues and come to the conclusion that the excess amount deposited after taking into account the duty liability determined by the Commissioner is in the nature of a deposit and therefore, the bar of unjust enrichment is not applicable. We agree with the learned Consultant's submission (for the Respondent) that when the duty paid during the pendency of an appeal before the appellate authority is considered as deposit, there is no reason why the amount de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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