M/S Bharat Sanchar Nigam Limited vs Cce&St, Lucknow

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of 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?

Service Tax Appeal No. 55828 of 2014-SM

(Arising out of order in appeal No. 226-ST/LKO/2014 dated 27.08.2014 passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax, Lucknow).

M/s Bharat Sanchar Nigam Limited Appellant

Vs.

CCE&ST, Lucknow Respondent

Appearance:

Shri Vineet Kumar Singh, Advocate for the appellant

Ms. Suchitra Sharma, Commissioner (DR) for the Respondent

Coram: Honble Mr. Justice G. Raghuram, President

Final Order No.51745/2015

Per: Justice G. Raghuram:

M/s Bharat Sanchar Nigam Limited is in appeal against the order of the learned Commissioner (Appeals) dated 27.08.2014 which was partly allowed. The appellant preferred an appeal against primary adjudication order dated 03.12.2012 passed by the Assistant Commissioner, Central Excise and Service Tax, Lucknow. Relevant facts may be noticed. A show cause notice dated 22.02.2005 was issued raising a demand of service tax of Rs.2,61,533/- for having provided telecommunication service during October 2002 to March 2003, alleging short remittance of service tax on the consideration received by BSNL during the period. The show cause notice also proposed levy of interest and penalty. After due process the primary adjudication order dated 03.12.2012 was passed confirming the demand of Rs. 2,61,533/- apart from interest; and penalties under Sections 76, 78 and 79 of the Act.

2. Aggrieve, BSNL preferred an appeal. The learned appellate Commissioner partly allowed the appeal, dropped service tax demand of Rs.2,61,533/- on a finding that the appellant was seen to have deposited excess service tax during the later period, dropped the demand of penalty but confirmed the order of the primary adjudication order to the extent of recovery of interest of Rs. 25,111/-.

3. Curiously BSNL does not contest the order of the appellate Authority to the extent the appellate order confirmed the demand for recovery of interest. Instead, the appeal seeks a refund of Rs.8,39,138/- which BSNL has allegedly remitted in excess of its liability to the credit of Government. It is not clear from these proceedings, from neither the show cause notice, the primary order or the impugned appellate order, whether BSNL had filed a refund claim under Section 11B of the Central Excise Act, 1944 and if so what orders were passed therein. BSNLs present claim for refund is not a part of the show cause notice dated 22.02.2005 nor of the primary order or even the impugned appellate order.

4. On the above analyses, this appeal seeking a refund of Rs. 839,138/- is misconceived as is the appeal which is therefore dismissed. No costs.

(Justice G. Raghuram)

President

Pant

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