Custom, Excise & Service Tax Tribunal
Gangeswari Metal Pvt Ltd vs Noida on 22 August, 2019
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT No. I
Excise Appeal No.70132 of 2019-Single Member
(Arising out of Order-in-Appeal No. NOI-EXCUS-002-APP-1910-17-18 dated
26/03/2018 passed by Commissioner (Appeals) Central Goods & Service Tax,
Noida)
M/s Gangeshwari Metal (P) Ltd. .....Appellant
(H.B. 4 & 5 Industrial Area, Sikandrabad, Distt. Bulandshahar-203205)
VERSUS
Commissioner of Central Excise, Korba ....Respondent
(Noida) APPEARANCE:
Absent on Call for the Appellant Shri Sandeep Kumar Singh, Authorised Representative for the Respondent CORAM:
HON'BLE SMT. ARCHANA WADHWA, MEMBER (JUDICIAL) FINAL ORDER NO. - 71589 / 2019 Date of Hearing : 22 August, 2019 Date of Decision : 22 August, 2019 PER: ARCHANA WADHWA Nobody appeared. As the matter had earlier also come up on record when the appellant was unrepresented and matter was adjourned in the interest of justice, I proceed to decide the appeal itself after hearing learned A.R. and after going through the impugned order.
2. The appellant was availing the services of GTA and was liable to pay service tax on reverse charge basis, to the extent of 30%. However they paid the said service tax on 100% amount Excise Appeal No.70132 of 2019-Single Member 2 by mistake, which they realized later on and filed an application for refund of the excess of service tax so paid by them. All the requisite documents were attached with the refund application and on adjudication the Original Adjudicating Authority verified all the documents and sanctioned the refund claim of Rs.2,96,542/-.
3. Revenue being aggrieved with the said order of Assistant Commissioner filed appeal before Commissioner (Appeals), who reversed the order of the Original Adjudicating Authority by observing as under:-
"5. In the impugned case it is evident that the respondent paid duty in excess on Freight Services but also availed Cenvat credit of this excess amount. The Respondent in their submissions claimed that said excess amount was reversed before filing of the refund application. However no mention of the same was made in the impugned order. The aspect of unjust enrichment was dealt with in a very casual manner without discussing how the same is not applicable to the case or why the refund is not hit by bar of unjust enrichment. The issue of unjust enrichment is very serious and should have been dealt in detail and in unambiguous way. The respondents claims regarding reversal are also not conforming with the entry number mentioned in the Refund application. In the cross objection they have mentioned the entry number as 20 whereas in the refund application it was mentioned as 100. Further no evidence from ER-1 returns are forthcoming that the said amount was actually reversed or not. It was essential on the part of the respondent to prove without any doubt that their claim was not hit by the provisions of unjust enrichment. The mention of words "it Appears That"
creates doubt on the claims of the respondent and therefore the refund claim is hit by the bar of unjust enrichment."
Excise Appeal No.70132 of 2019-Single Member 3
4. As is seen from the above, the Commissioner (Appeals) has set aside the order of the Assistant Commissioner by observing that there were doubts on the claim of the assessee inasmuch as certain entries were not proper. I note that the said order of Commissioner (Appeals) has set aside the order of Original Adjudicating Authority only on the basis of doubts or non consideration of certain documents and prior verification of the same. In such a scenario instead of setting aside the order of the Assistant Commissioner he should have remanded the order for verification and examination of those documents.
5. In view of the above, I set aside the impugned order and remand the matter to Assistant Commissioner for fresh decision after verifying of the requisite documents.
(Dictated and pronounced in open court) Sd/-
(Archana Wadhwa) Member (Judicial) Lks