M/s. Pallonji & Co. Pvt. Ltd. Versus Commissioner of CGST & CX, Mumbai
Service Tax
2018 (12) TMI 731 – CESTAT MUMBAI – 2019 (369) E.L.T. 748 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 20-11-2018
Appeal No. ST/86371/2018 – A/87965/2018
Service Tax
Dr. Suvendu Kumar Pati, Member (Judicial)
Shri Vinay Kumar Jain, Advocate for the appellant
Shri M.P. Damle, AC (AR) for the respondent
ORDER
Eligibility to avail cenvat credit for the amount claimed in the refund application that was rejected on grounds of limitation is the subject matter of this appeal.
2. Facts giving rise to this appeal is that appellant company executed certain maintenance, repairing and construction work for Mazgaon Doc Ltd. (MDL) and Tata Power through work contract agreement and after completion of the work, rate was reduced on renegotiation by both firms against which appellant raised credit notes to their customers for differential rate in the value of services provided and service tax co
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edit.
4. Ld. AR for the department supported the rationality of order passed by the Commissioner (Appeals) but submitted that matter can be remanded for examination of eligibility of appellant to avail cenvat credit under Rule 6(3) of the Cenvat Credit Rules.
5. Heard from both sides at length and perused the case records. Admittedly, refund claim was made on 30.07.2015 for the period ending March 2014 and in view of clause (f) of Explanation B to Section 11B of the Central Excise Act 1994, date of payment is to be taken into consideration for computation of one year period to file the refund application. In its order dated 19.02.2016, the original adjudicating authority has given his clear finding under para 5 that provision of Rule 6(3) of the Service Tax Rules, 1994 deals with such a situation and the same is fully applicable to the present refund claim and he has also noted in para 6 to have verified the records and found that service tax was not paid solely in cash and paid in b
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limitation period, the order-in-original was sustainable. More importantly, the appellant's request for adjustment of excess payment is not the subject matter of appeal for which he did not give any direction for such adjustment. This being the factual and legal scenario and in view of the reported decision cited supra by the appellant which favours availment of such benefit of Rule 6(3) after refusal of refund claim made under Section 11B of the Central Excise Act, it is now to be found out if Commissioner (Appeals) is empowered to grant such a relief which was not sought by the appellant before the adjudicating authority.
6. It is an admitted fact that appellant was not put to notice before the rejection of its claim except being asked to submit copies of documents like invoices, GAR-7, cenvat claim certificate, copy of purchase order, work order, work sheet etc. and there is no noting available in the order-in-original as to if alternative plea for availment of cenvat credit was m
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n of tax dispute being made by quasi judicial authorities, all provisions of the Code of Civil Procedure is not directly applicable to it. But when there is no express provision made to meet such a contingency which is not contemplated in the procedure prescribed for such adjudication of tax disputes, spirit of provision of civil procedure may be brought into service for effective adjudication. This fact is further fortified by the decision of the Hon'ble Supreme Court reported in M.P. Steel Corporation vs. CCE 2015 (319) ELT 373 (SC) wherein spirit of Indian Limitation Act was pressed into service for condoning delay in filing appeals. Therefore, it would not be irrational to invoke order 7 rule 7 of the Civil Procedure Code, which empowers a court to grant such other relief which may always be given, as a court may think just, to the same extent as if it has been asked for. In borrowing the spirit from the provision of the CPC, the following order is passed:-
8. The appeal is al
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