M/S Sai Infrastructures vs Cce &St, Kanpur

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. 54332 of 2014

(Arising out of order in appeal No. 83-ST/APPL/KNP/2013 dated 09.12.2013 passed by Commissioner (Appeals), Central Excise & Service Tax, Kanpur).

M/s Sai Infrastructures Appellant

Vs.

CCE &ST, Kanpur Respondent

Appearance:

Shri A. K. Dixit, Advocate for the Revenue

Shri R. K. Gupta, DR for the Respondent

Coram: Honble Mr. Justice G. Raghuram, President

Final Order No. 52603 / 2015

Per: Justice G. Raghuram:

The assessee is the appellant and has filed the appeal against the order dated 09.12.2013 passed by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Kanpur whereby the lower appellate Authority rejected assessees appeal for refund of excess service tax deposited, amounting to Rs.2,86,443/-.

2. Relevant facts may be noticed. During 18.04.2006 to 31.03.2008, DGCEI initiated investigation regarding short remittance of service tax. The assessee deposited Rs.5,04,700/- on 25.07.2008 pending investigation and a further amount of Rs.16,34,174/- on 12.11.2009. Thus the appellant had made a pre-deposit of Rs.21,38,874/-, prior to initiation of proceedings.

3. By the adjudication order dated 16.12.2010 the Additional Commissioner, Central Excise, Kanpur while dropping penalties on invoking Section 80 of the Act confirmed service tax demand to the extent of Rs.15,69,823/- apart from interest under Section 75 of the Act. Revenue preferred an appeal against adjudication order which was rejected by the Commissioner (Appeals) on 26.04.2011.

4. Thereafter, the appellant filed an application for refund on 07.03.2012, seeking refund of Rs.2,86,443/- after adjustment of the assessees tax liability under Section 75 of the Act.

5. The Assistant Commissioner, Kanpur by an order dated 27.12.2012 rejected the refund claim on the bar of limitation as well as on the ground that the assessee was unable to establish that there was no unjust enrichment involved and assessee had not passed on the burden of service tax. Assessee preferred and appeal and by the impugned order the lower appellate authority found in favour of the appellant on the point of limitation and concluded that the refund was filed within the period of limitation. Revenue has not filed any appeal. The impugned order however rejects refund on the ground that the assessee failed to disclose the amount of refund claimed by it in its financial records, in its books of accounts and failed to furnish original financial records to verify its claim and therefore appellant failed to establish that the liability of the excess amount pre-deposited was not passed on and therefore there was no unjust enrichment. This is wholly fallacious reason. Both the authorities concede the position that appellant pre-deposited Rs. 21,38,874/- against its assessed service tax liability of Rs.15,69,823/- apart from the interest thereon. In the circumstances, the excess amount deposited by the appellant, if refundable under law would be the amount receivable by it, particularly as the appellate authority found in favour of the assessee on the point of limitation.

6. It however requires to be noticed that the impugned order in para 7 computes the quantum of refund at Rs. 2,57,625/- after calculating the amount of interest payable by the assessee on the confirmed service tax demand of Rs.15,69,823/-.

7. On the aforesaid analyses, the appeal is allowed and the appellant shall be entitled to refund of Rs.2,57,675/- alongwith interest, if any, in accordance with law. No costs.

(Justice G. Raghuram)

President

Pant