Tata Tele Services Ltd vs Commissioner Of Service Tax
- CitationAppeal No. ST/406/10
Ratio decidendi
The rule this decision rests on
The refund claim for service tax paid under protest cannot properly be rejected on the sole ground that the underlying question of liability is pending before a higher forum, where a Tribunal decision on that same underlying question has since been rendered in the assessee's favour; the rejection in such circumstances is premature and the order rejecting it is liable to be set aside, with the claim remitted to the adjudicating authority for processing.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT No. I
Appeal No. ST/406/10
(Arising out of Order-in-Appeal No. SB(50)50/STC/2010 dated 10.05.2010 passed by Commissioner of Central Excise (Appeals), Mumbai)
For approval and signature:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)
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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?
Tata Tele Services Ltd. Appellant Vs.
Commissioner of Service Tax Mumbai Respondent
Appearance:
Shri Bharat Raichandani, Advocate for appellant Shri D. Nagvenkar, Addl. Commr. (AR) for respondent
CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)
Date of Hearing: 11.05.2015 Date of Decision: 11.05.2015
ORDER NO
Per: M.V. Ravindran
This appeal is directed against Order-in-Appeal No. SB(50)50/STC/2010 dated 10.05.2010.
2. Heard both sides and perused the records.
3. The issue involved in this case is regarding the rejection of the refund claim filed by the appellant in respect of differential service tax paid under protest. The said refund claim was rejected by the adjudicating authority on the ground that the main issue of demand of service tax on the appellant is still pending with the higher judicial forum. Commissioner (Appeals) has also held the same view.
4. Learned Counsel appearing for the appellant submits that the main issue as to whether they are required to discharge the service tax liability on the amount which they have received from the distributors and dealers or on the MRP on which the subscribers purchase Recharge Vouchers and SIM Cards from the distributors and the dealers has been decided by this Bench by final order No. A/566-567/15/STB dated 11.3.2015 as reported at 2015-TIOL-775-CESTAT-MUM. He produces copy of the said reported judgement.
5. Learned D.R. fairly submits that the order dated 11.03.2015 is on merits of the case and has been held in favour of the assessee.
6. On perusal of the records and the said order dated 11.3.2015, we find that the impugned order before us rejecting the claim of the appellant has been pre-mature and is now set at rest by the Tribunal (wherein one of us was a Member) we have held that the appellant is not required to pay the differential service tax which has been paid under protest, the impugned orders are to required to be set aside and we do.
7. Impugned order is set aside and the lower authorities are directed to process the refund claim.
(Dictated in Court)
(P.S. Pruthi) Member (Technical) (M.V. Ravindran) Member (Judicial)
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