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2016 (3) TMI 141 - AT - Service TaxLegality and propriety of the direction in the impugned order - Return of the refund application to the appellant sans sanction or rejection - Assessee pleaded that the claim be held in abeyance but without demur and with ingenuity, lower authorities have devised the outcome of returning the application for refund without dealing with the ground for such claim - a course of action not thought of in the law and borders on impossibility of implementation. Held that: The claim having been filed and taken on record, its return can be said to be complete only when its custody is transferred back to the claimant. It is moot whether an order can render it to be so without the willing participation of the claimant in a custodial transaction. That the claimant has been pursuing appellate remedies is a clear indication of lack of such willingness. The orders of the lower authorities would appear to be no whit more than printing on a piece of paper. The claim itself is symptomatic of a lack of faith in the fairness of the institution in dealing with refund claims. Every conceivable reason is assigned to justify the unwillingness to open the purse strings and not the least used are ‘limitation' and ‘pre-requisite of challenging the assessment.' It would appear that the claim has been filed to forestall recourse to these justifications. That the claim has been filed and that it has been preceded by payment of tax is undeniable. That the content of the order passed in relation to the refund claims is unimplementable is uncontestable. The eligibility for refund should have been decided taking into consideration the taxability of the service and the procedures laid down in law relating to tax collection and refund. The order of the original authority has merged with that of the first appellate authority and the merged order lacks legal sanctity for reason. Therefore, the return of the refund claim is not said to be legal and to be decided as afresh by the original authority. - Appeal disposed of
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