Custom, Excise & Service Tax Tribunal
M/S Ambuja Cements Limited vs Cce, New Delhi on 20 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV DATE OF HEARING : 20/09/2016. DATE OF DECISION : 20/09/2016. Service Tax Appeal No. 639 of 2010 [Arising out of the Order-in-Appeal No. 103/ST/DLH/09 dated 13/01/2010 passed by The Commissioner of Central Excise (Appeals), Delhi I, New Delhi.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) 1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair :Seen copy of the order? 4. Whether order is to be circulated to the :Yes Department Authorities? M/s Ambuja Cements Limited Appellant Versus CCE, New Delhi Respondent
Appearance Shri Karan Sachdev, Advocate for the appellant.
Ms. Neha Garg, Authorized Representative (DR) for the Respondent.
CORAM :Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) Final Order No. 53726/2016 Dated : 20/09/2016 Per. Archana Wadhwa :-
After hearing both the sides, we find that the appellants, who are engaged in the manufacture of cement, initially paid service tax, on reverse charge basis, in respect of clearing and forwarding services received by them. Subsequently, realizing that no such service tax was required to be paid by them, they filed a refund claim of around Rs. 35 lakhs on 17/11/99 on the ground that Honble Supreme Court judgment in the case of Laghu Udyog Bharati vs. Union of India reported in 1999 (112) E.L.T. 365 (S.C.). The said refund claim is for the period by July, 1997 to August 1999.
2. The same was rejected by the original Adjudicating Authority vide his order by order-in-original dated 24/1/2000 on the ground of unjust enrichment. The appellant filed an appeal against the said decision of original Adjudicating Authority, which was rejected by Commissioner (Appeals) vide his order-in-appeal dated 12/10/2000. The said appellate order passed by Commissioner (Appeals) was not appealed against by the appellant and was allowed to attain finality.
3. Subsequently by way of separate proceedings, the appellant challenged the validity of the amendment introduced by Finance Act, 2000, as also in 2003 in respect of the assessees liabilities to pay service tax under reverse charge before the Honble Supreme Court. The Honble Supreme Court vide its order dated 17/3/05 upheld the levy but ruled that no service tax liability would arise against an assessee for the period November 1998 to August 1999, in respect of C&F services.
4. As a result of the above ruling of the Honble Supreme Court, the appellant again approached the Revenue for the refund of service tax wrongly paid by them during the said period, which was already claimed by them and was rejected by the authorities till the level of Commission (Appeals). The said refund claims stand again rejected by the lower Authorities, in the present proceedings, on the ground that the matter had already attained finality and it is not open to the assessee to again file the refund claim in respect of the same amount, which stands already adjudicated and which proceedings were not kept alive by the assessee, by way of filing appeal there against.
Hence, the present appeal.
5. Learned Advocate appearing for the appellant is not disputing the factual position. Admittedly the refunds filed by the appellant for the period, in question, were the subject matter of earlier orders of the original Adjudicating Authority as also Commissioner (Appeals), by which the same were rejected The said orders were not appealed against by the appellant and as such admittedly attained finality. As such, in our views the appellants action of again approaching the Revenue for claim of refund, is neither in the line of justice or proprietary.
In fact, an identical issue stand considered by the Tribunal in the case of CCE, Bhopal vs. M/s Prism Cement Ltd. vide final order No. A/52158/2016 EX (DB) dated 14/06/2016, its stand observed as under :-
7. Learned DR refers to the Honble Supreme Court order in the Union of India vs. Saraswati Marble & Granite Industries Pvt. Ltd. reported as 2015 (326) E.L.T. 427 (S.C.). In an identical circumstances, it was held by the Honble Supreme Court that after the proceedings had attained finality and have not been challenged before the higher authorities, the benefit cannot be extended to that particular assessee in view of a subsequent decision by the Supreme Court. Otherwise also we find that the issue is no more res-integra. In the absence of fact of filing the appeal against Commissioners order denying the credit, it has to be held that the Commissioners order attained the finality. In such circumstances, the benefit of any subsequent decision of higher forum, cannot be extended in as much as the assessee has not kept the proceedings alive during the in between period so as to infuse life into the same. The proceedings having become dead, cannot be made alive subsequently. As such, we fully agree with the learned DR that the refund sanctioned by Commissioner (Appeals) is against the settled decision of law. Accordingly, the impugned order is set aside and Revenues appeal is allowed.
6. In as much as issue is stands decided by the above referred decision, we find no reasons to interfere with the impugned order of authorities. Accordingly appeal is rejected.
(Dictated and pronounced in open court.) (Archana Wadhwa) Member (Judicial) (V. Padmanabhan) Member (Technical) PK ??
??
??
??
2