Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2023 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (12) TMI 44 - CESTAT NEW DELHIScope of remand order - Refund of service tax paid under goods and transport agency service [GTA] on a reverse charge basis - time limitation - whether the Assistant Commissioner and the Commissioner (Appeals) in their orders dated 30.01.2018 and 23.04.2018 travelled beyond the remand order? - HELD THAT:- The Commissioner (Appeals) in the order dated 22.11.2016 held that the appellant would be entitled to refund but the matter was remanded to the Assistant Commissioner only for the limited purpose of verification of the documents. This is clear from paragraph 10 of the remand order. The Assistant Commissioner, pursuant to the remand order, did record a categorical finding that the bar of unjust enrichment would not be attracted since the amount was paid under reverse charge basis. After having held so, the Assistant Commissioner should have granted refund but what transpires from the order dated 30.1.2018 passed by the Assistant Commissioner is that he further proceeded to examine whether the appellant would be entitled to refund and for this purpose, in view of the decision of the Supreme Court in Singh Transporters, concluded that the transportation of coal within the mining area would appropriately be classifiable under GTA service. It is clear that the Assistant Commissioner travelled beyond the remand order as he proceeded to examine whether the appellant is entitled to refund or not on merits when this issue had been settled by the Commissioner (Appeals) in the order dated 22.11.2016 and this was not a matter which was remanded to the Assistant Commissioner. The order dated 23.04.2018 passed by the Commissioner (Appeals) cannot be sustained and is set aside in as much a categorical finding has been recorded by the Assistant Commissioner in order dated 30.1.2018 that the bar of unjust enrichment would not be attracted since the amount was paid under reverse charge basis, which finding has been recorded after examination of the documents as directed by the Commissioner (Appeals) in the order dated 22.11.2016. - refund allowed Appeal allowed.
|