M/S Tata Teleservices Ltd vs Commissioner Of Service Tax
- CitationAPPEAL No.ST/403/11-Mum
Ratio decidendi
The rule this decision rests on
The refund claim was rejected as premature because the underlying service tax liability was still pending before the adjudicating authority. Once the Tribunal has finally decided that liability in the assessee's favour, a refund claim for the tax paid under protest cannot be rejected as premature on the ground that the matter is pending; the impugned rejection is set aside and the lower authority must process the refund claim on its merits.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. M-I/AV/91/2011 dated 17.02.2011 passed by Commissioner of Central Excise, (Appeals-II), Mumbai)
For approval and signature:
Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, 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 should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== M/S Tata Teleservices Ltd. Appellant Vs. Commissioner of Service Tax, Mumbai Respondent
Appearance:
Shri- Vaibhew P. Pataukar, Advocate for Appellant Shri- A.K. Goswami, Additional Commissioner (AR), for Respondent
CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)
Date of Hearing : 13/08/2015 Date of Decision : 13/08/2015
ORDER NO
Per: M.V. Ravindran
This appeal is directed against Order-in-Appeal No. M-I/AV/91/2011 dated 17.02.2011.
2. Heard both sides and perused the records.
3. We find from the records that the first appellate authority as well as the adjudicating authority has dismissed the refund claim filed by the appellant as premature, for the reason that the matter is pending disposal before the adjudicating authority. The issue involved in this case is regarding the refund of the amount paid by the appellant under protest. We find that the main appeal of the appellant against the confirmation of Service Tax liability was disposed of by this bench by final order No. A/566-567/15 dated 11/03/2015. Since the issue is now disposed of by order of the Tribunal, the impugned order in this case needs to be set aside. Identical issue also came up before the bench in respect of the very same appellant in appeal no. 406/10 and this bench by a order dated 14/05/2015 held as under:-
on perusal of records and the said order dated 11/03/2015, we find that the impugned order before us rejecting the claim of the appellant has been premature is now sated rest by the Tribunal (where in one of us was a member) we have held that the appellant is not required to pay the deforsial service tax which has been paid under protest, the impugned order are required to be set aside and would also.
4. In view of the forgoing, we set aside the impugned order and direct the lower authority to process the refund claim filed by the appellant herein. (Dictated in Court)
(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)
akp 1 3 APPEAL No.ST/403/11-Mum
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