TMI Blog2024 (4) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating authority has not understood para-2 of the CBEC instructions dt. 12.12.2013 issued in regard to litigation policy. It does not mean that the decision of the Tribunal can be flouted or refused to be given effect to. When not appealed by either side, the order passed by Tribunal is final. The department cannot sit in appeal on an order passed by the Tribunal. The Hon ble Apex Court in the case of UNION OF INDIA VERSUS KAMLAKSHI FINANCE CORPORATION LTD. [ 1991 (9) TMI 72 - SUPREME COURT] held that The position now, therefore, is that, if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the issue to the Appellate Collector or the Appellate Tribunal as the case may be. In the light of these amended provisions, there can be no justification for any Assistant Collector or Collector refusing to follow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have some reservations on its correctness. The Hon ble Rajasthan High Court in the case of BHARAT SANCHAR NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority again rejected the refund holding that since the appellant has not availed cenvat credit, the refund is not eligible. It was also held by the original authority that as the export has taken place prior to 1.10.2007 is hit by limitation as the refund claim was filed beyond one year from the date of export. 5. Against this, appellant filed appeal before the Commissioner (Appeals) who upheld the order passed by the adjudicating authority rejecting the refund claim. 6. Against the order of Commissioner (Appeals), the appellant again preferred an appeal before the Tribunal. As per Final Order No.40379/2013 dated 13.09.2013, the Tribunal held that in case of input services, the date of payment of service tax has to be taken into consideration for computing the period of limitation, and this being after 01.07.2007, the claim is filed within the time limit of one year and that the appellant is eligible for refund. The relevant part of the Final Order passed by the Tribunal is reproduced as under : 14. I have considered submissions on both sides. I find that the decision of the Madras High Court in the case of GTN Engineering (I) Ltd. (supra) was with reference to Cenvat credit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. Aggrieved by such order, the appeal is once again before the Tribunal. 10. The Ld. Consultant Shri M. Saravanan appeared and argued for the appellant. It is submitted that the Tribunal vide Final Order dt. 13.09.2013 had allowed the appeal after considering the issue of limitation and the availment of credit. The appellant had not registered with the Service Tax department and therefore had not availed credit of the service tax paid by them. It is not disputed that the appellant had paid service tax and had valid document to avail credit. As they did not register with department was not able to avail credit as per records. It has been held by the Hon ble Karnataka High Court in the case of mPortal India Wireless Solutions P. Ltd. Vs C.S.T Bangalore 2012 (27) S.T.R. 134 (Kar.) that even if the assessee is not registered they are eligible for credit of refund of the service tax. Further, the issue of time bar was also considered by the Tribunal observing that the decision of the Hon ble High Court in the case of GTN Engineering (I) Ltd. (supra) was not applicable as, in the present case, the refund sought is for service tax and not of duty paid on inputs or capital goods. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63/2010 JC Dated 12-12-2013 in para 2 and has, inter-alia, stated the following : 2. Sub-Section 3 of Section 35R and Section 131BA provides that if an appeal has not been filed by the Department following instructions issued for not filing appeal below the monetary limit, no person, being a party in appeal, shall contend that the Department has acquiesced in the decision on the disputed issue by not filing appeal. In effect, the decisions / judgments accepted for reasons of monetary limit do not have precedent value. 10. However, I have gone through the facts of the Refund Claim filed and the related litigations and considered the merits of the claim also. The claimant have filed a refund claim under Rule 5 of Cenvat Credit Rules, 2004. I find that in para 5.3(3) of OIO C.No.IV/16/54/2009-ST-RF dated 23.7.2009, the Original Adjudicating Authority has stated that they have availed drawback under Customs, Central Excise Duties and Service Tax Draw Back Amendment) Rules, 2006. But as per Rule, no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback (Amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of litigations and the Tribunal vide Final Order No.40379/2013 dated 13.09.2013 had held that the appellant is eligible for refund. Apart from this, it is also held that the said Final Order of the Tribunal dt. 13.09.2013 is not accepted by the Department on merits and that the same is accepted only on monetary grounds as per the instructions issued by CBEC vide F.No.390/Misc/163/2010-JC Dated 12.12.2013. I am surprised by the audacity of the refund sanctioning authority to re-adjudicate the issue even after the Tribunal has allowed the appeal with consequential reliefs. When the Department has not filed any appeal, it is indeed acceptance of the order of the Tribunal. The Department then cannot deviate such acceptance on the basis of merits or monetary grounds. The refund has to be sanctioned to the appellant. The ligation policy put forward in every Budget is to reduce the litigation and to lessen the burden of public exchequer on litigations. This being the intention of the litigation policy, the department has readjudicated the matter and again put further rounds of litigations. These situations should not be allowed to recur or continue. It appears that the adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der appealed against and directed the Assistant Collector to pass a reasoned and speaking order. 3 . When the matter thus went back to the Assistant Collector he passed an order on 12-5-1989, reiterating the conclusion that had been reached by his predecessor. He also did not give any reasons as to why the order of the Collector (Appeals) in respect of the Borivili plant was not followed. Not only this, the assessee had placed before him a decision of the Central Excise and Gold Control Appellate Tribunal (`the Tribunal ) in the case of M/s. Chetna Polycoats (P) Ltd., reported in 1988 (37) E.L.T. 253 to a similar effect. The Assistant Collector distinguished it observing that the said decision had not been agreed to by the Department which had filed an appeal to the Supreme Court therefrom. The second order passed by the Assistant Collector was practically a repetition of the earlier order. 4 . The assessee thereupon filed a writ petition in the Bombay High Court. The High Court quashed the order of the Assistant Collector and directed the department to allocate the matter to a competent officer to pass a proper order [1990 (47) E.L.T. 231 (Bom.)]. The Union of India has preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the department - in itself an objectionable phrase - and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 7 . The impression or anxiety of the Assistant Collector that, if he accepted the assessee s contention, the department would lose revenue and would also have no remedy to have the matter rectified is also incorrect. Section 35E confers adequate powers on the department in this regard. Under sub-section (1), where the Central Board of Excise and Customs [Direct Taxes] comes across any order passed by the Collector of Central Excise with the legality or propriety of which it is not satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e observations of the High Court should be kept in mind in future and utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline and the need for giving effect to the orders of the higher appellate authorities which are binding on them. 9 . With the above observations, this Special Leave Petition is dismissed. 17. The Hon ble Rajasthan High Court in the case of Bharat Sanchar Nigam Ltd. (supra) held that when the entire order in original is set aside by Tribunal, the department cannot give limited effect to Tribunal s order restricting it to one demand only. The relevant paras read as below : 10 . From the materials on record what emerges is that in the show cause notice there were three different independent tax demands. One was for a sum of Rs. 12,62,95,889/- for providing services to use towers by the petitioner. Second one was Rs. 38,57,094/- on account of discrepancy in the taxable value shown in the ST-3 return vis- -vis financial records and third was of Rs. 3,96,954/- under reverse charge mechanism in respect of goods contract services from 1-7-2012 onwards. The petitioner had filed a detailed reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any aspect of striking down the other two demands of Rs. 38,57,094/- and Rs. 3,96,954/-. Even in such circumstances it was the duty of the Deputy Commissioner to approach the Tribunal and seek rectification of the order. The other clear option was to challenge the same and have the offending portion of the judgment set aside by the High Court. Without resorting to either of these two remedies he could not have adjusted the pre-deposit amounts as he has done in the present case. He was thus labouring under a wrong belief and perhaps bona fide to protect interest of the revenue has passed the order which is challenged before us. His intention however would not be sufficient to save the order from the vice of illegality. He may if so advised challenge the judgment of the Tribunal even now before the High Court if he could make out good grounds for condonation of delay. 13 . Under the circumstances subject to above observations petition is allowed. Impugned orders are set aside. The adjustment of the pre-deposit amounts of the petitioner made by the Deputy Commissioner is quashed. The department shall refund the said sum within a period of four months from today. This would of course ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
