Custom, Excise & Service Tax Tribunal
Cce, Raipur vs Shri Ajay Kumar Agarwal on 1 September, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Service Tax Appeal No.133 of 2009-SM (BR)
[Arising out of Order-in-Appeal No.31(ST)/RPR-I/2008 dated 19.11.2008 passed by the Commissioner of Central Excise (Appeals-I), Raipur-(C.G.)]
Date of Hearing/ Decision:1.9.2009
For approval and signature:
Hon'ble Mr. P.K. Das, Member (Judicial)
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1. Whether Press Reporters may be allowed to see
CESTAT (Procedure) Rules, 1982.
2. Whether it should 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 copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
CCE, Raipur Appellants
(Rep. by Shri S.K. Bhaskar, SDR)
Vs.
Shri Ajay Kumar Agarwal .Respondents
(Rep. by None.) CORAM: Honble Mr. P.K. Das, Member (Judicial) Order No/Dated:1.9.2009 Per P.K. Das:
Revenue filed this appeal against the order of the Commissioner (Appeals), whereby refund of Rs.93,064/- was allowed.
2. After hearing ld. DR and on perusal of the records, the main contention of the Revenue is that the amount of Rs.93,064/- was not sanctioned by the Original Authority as the amount was not paid under protest and the refund claim has not been filed within one year from the relevant date.
3. For the proper appreciation of the case, the finding of the Commissioner (Appeals) is reproduced below:-
6. I have carefully gone through the facts of the case and the rival submissions on record. In pursuance of the submissions made by the Appellant during the course of personal hearing. I have perused the Appellants letter dated 12th August, 2005 addressed to the Superintendent (Tech.) Raipur and find that the Appellant had clearly indicated thus: In the meantime at your instance but on protest we have already paid the aforesaid amount of Rs.3,50,523/- vide challan dated 21/04/2004. This letter has been received by the Inward Clerk of the Divisional Office on 12th August, 2005. This is a clear evidence, the Appellant had intimated paying the aforesaid amount under protest. I also find, the entire amount of Rs.3,50,523/- was deposited by way of a single TR-6 challan dated 21.04.2004 and not in two parts. Therefore, there was no justification on the part of the lower authority to bifurcate the amount of Rs.3,50,523/- into two parts wherein one part was consequential to the Order-in-Appeal and the other part treated as time barred. The lower authority has clearly mis-interpreted the earlier Order-in-Appeal dated 10.08.2007 to conclude that it pertains to consequential relief only in respect of Rs.2,57,459/- and not for the entire refund claim of Rs.3,50,523/-. A perusal of the said Order-in-Appeal further reveals that the Appellant had sought relief in respect of the entire amount of Rs.3,50,523/- which was already paid vide TR-6 challan dated 21.04.2004 for the period 21.12.2001 to 13.01.2004. The said amount was ordered to be appropriated by the lower authority in the Order impugned. The lower authority ought to have realised that when his earlier Order-in-Original No.05/Adj./ST/AC/2007-08 dated 23.4.2007 was set aside vide the Order-in-Appeal dated 10.08.2007, the order of appropriation of the amount of Rs.3,50,523/- stood vacated in its entirety. In the result, the Appellant was entitled to the refund of the entire amount of Rs.3,50,523/- already paid vide TR-6 Challan dated 21.04.2004 as consequential relief.
8. In view of the above, the Order impugned is not sustainable on merits as the lower authority has failed to assimilate the facts on record while disallowing the part refund claim of Rs.93,064/-.
4. I agree with the findings of the Commissioner (Appeals). It is seen that the respondent deposited the entire amount of Rs.3,50,523/- vide TR-6 challan dated 21.04.2004 and the refund was partly allowed. So, there is no justification to deny the refund of balance amount of Rs.93,064/-. Hence, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. Order dictated & pronounced in open court on 1.9.2009.
( P.K. Das ) Member (Judicial) Ckp.