M\/s. ITC Ltd. Versus Commissioner of GST & Central Excise Salem
Service Tax
2018 (9) TMI 1590 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 31-7-2018
Appeal Nos. ST\/2 and 3\/2010 – Final Order Nos. 42188-42189\/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
\nShri Raghavan Ramabhadran, Advocate for the Appellant
\nShri S. Govindarajan, AC (AR) for the Respondent
\nORDER
\nPer Bench
\nThe issue involved in both the appeals being the same, they were heard together and are disposed by this common order.
\n2. Brief facts are that the appellants filed two refund claims under Notification No. 41\/2007-ST dated 6.10.2007 for an amount of Rs. 18,82,402\/- and Rs. 6,54,085\/- being the service tax paid for the service provided by a Customs House Agent in relation to goods exported by them. The first refund claim for the quarter ending January to March 2008 was originally filed before the Hyderabad Commissionerate. T<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n 1.4.2008 under Notification 41\/2007-ST. Thus, both the refund claims were disallowed against which the appellants are now before the Tribunal. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n . Veera Spinning Mills P. Ltd. Vs. Commissioner of Central Excise, Coimbatore – 2001 (131) ELT 437 (Tri. Chennai) = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n him to know the grounds for rejection of the refund claim so as to arm himself to defend the case. It is the foundation of any lis in taxation proceedings. Without issuance of such show cause notice, the adjudicating authority has gone into the matter and rejected the refund claim. In appeal, Commissioner (Appeals) has upheld the same and also added a further ground for rejection. In the decisions relied by the ld. counsel for appellant, the Tribunal in the case of Goodwill Sales Pvt. Ltd. (supra) has held as follows:- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ssment, the reaction may well have been to rectify the alleged defect. In such a circumstance, the refund claim need not have been disposed of but kept pending till the correctness of enhancement was decided upon in appeal. And the assessment dispute now stands settled by the appellate authority.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. ITC Ltd. Versus Commissioner of GST & Central Excise SalemService Tax2018 (9) TMI 1590 – CESTAT CHENNAI – TMICESTAT CHENNAI – ATDated:- 31-7-2018Appeal Nos. ST\/2 and 3\/2010 – Final Order Nos. 42188-42189\/2018Service TaxMs. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri Raghavan Ramabhadran, Advocate for the Appellant Shri S. … Continue reading “M\/s. ITC Ltd. Versus Commissioner of GST & Central Excise Salem”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-14070","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/14070","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14070"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/14070\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14070"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14070"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14070"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n3. The ld. counsel Shri Raghavan Ramabhadra appeared and argued the matter on behalf of the appellant. He submitted that the issue of time bar is only with respect to the refund claim for the quarter ending January to March 2008. This is because the appellant had originally filed before wrong forum. With regard to the refund claim for both the periods January to March 2008 and April 2008 to June 2008, the original authority as well as the Commissioner (Appeals) has rejected the refund claim stating that the appellant was not maintaining common books of accounts in respect of all their exports pertaining to all their factories, they did not have a break-up of the amount of input service pertaining to each factory. Therefore, while claiming the refund claim, they apportioned the input services in terms of the turnover of each factory and filed r<\/p>\n
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\nb. Commissioner of Central Excise, Aurangabad Vs. Sidheshwar SSK Ltd. – 2011 (274) ELT 141 (Tri. Mum.)
\nc. D.E. Shaw India Software Pvt. Ltd. Vs. Commissioner of Central Excise, Hyderabad – 2016 (3) TMI 725 – CESTAT Hyderabad
\n5. The ld. AR Shri S. Govindarajan supported the findings in the impugned order. He submitted that the appellant is taking the plea of non-issuance of show cause notice for the first time and therefore the same cannot be entertained. He prays for remanding the matter for issuance of show cause notice and for reconsideration of the refund claims.
\n6. Heard both sides.
\n7. The main contention put forward by the ld. counsel for the appellant is that they have not been issued a show cause notice proposing to deny the refund claim. Thus, they were prevented from putting forward their defense for establishing their case. In case, the department had issued <\/p>\n
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\n“12. The other issue for determination is whether the first appellate authority was correct in restoring the refund claim to the jurisdictional competence of the original authority. While making allowances for the wariness displayed, without any substantiation, by the original authority in according sanction to the claim for refund in the absence of challenge to the assessment itself, we note with disapproval that the claim has been disposed of without placing the claim<\/p>\n
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\n8. We find that the said decision would squarely apply to the facts of the case. The ld. AR has requested to remand the matter so as to facilitate the department to issue show cause notice. He has not been able to point out any provision in law which supports this argument. The Tribunal has no such powers to direct the department to issue show cause notice. The appellant has been denied of an opportunity to defend their case due to the lack of show cause notice.
\n9. Following the decision above and also appreciating the facts of the case, we are of the considered opinion that the rejection of refund claim without issuance of show cause notice cannot sustain. The appeals filed by the appella<\/p>\n
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