TMI Blog2015 (1) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay High Court and disposal of the same by the Hon'ble Bombay High Court on 27.01.2014, the same is within one year from the date of acknowledgement of discharge certificate issued by the competent authorities in favour of CNIL, therefore the claim of re-credit is filed by the appellant. Representation made by the appellant for re-credit of service tax paid on behalf of CNIL is within time. We further note that from the records placed before us, it is not ascertainable that whether the appellant has paid exactly an amount of ₹ 79,92,56,619/- on behalf of CNIL which is to be examined by the adjudicating authority. Therefore, for the limited purpose, quantification of the amount to be re-credited in the appellant's CENVAT credit account is required and the same is to be computed by the adjudicating authority. In these circumstances, we remand the matter back to the adjudicating authority for only limited purpose of quantification of the amount to be re-credited which shall be done by the adjudicating authority within 15 days of receipt of this order. The appellant is also directed to co-operate with the adjudicating authority for the quantification of the amount. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de an application and details of the same are disclosed in the writ petition. The petitioner then sought virtual refund of the said amount of ₹ 79,92,56,619/- or relief in the form of credit of their cenvat credit amount to this extent. A representation was made in that behalf to the authorities and which instead of considering it, kept the same pending. In view thereof, this Court was moved by the petitioner by an earlier writ petition. That earlier writ p etition came to be disposed of by this Court with directions to the authorities to consider its representation after hearing the petitioner and pass a speaking order. It is this speaking order, a copy of which is to be found at Annexure-A, which is now challenged by this further writ petition. 4. At the outset, Mr.Jetly, learned counsel appearing on behalf of the respondents raised objection to the maintainability of this writ petition. Firstly, on the ground that what the petitioner had filed was only a representation and not a refund application. All that the authorities had advised the petitioner is to file an appropriate and proper application for refund or credit of service tax paid and to the competent authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng refund or credit of their cenvat credit account. (c) The appeal, then, shall be decided on its own merits and in accordance with law. (d) All contentions of both sides on merits of the petitioner's claim are kept open. (e) The writ petition is disposed of in these terms. No costs. 2. Brief facts of the case are that the appellant is a registered Company under the category of Business Auxiliary Services with the department to pay service tax on their activity of providing infrastructural facilities to various telecom companies. Chennai Network Infrastructure Ltd. (CNIL), having a registered office at Navi Mumbai and is engaged in providing similar services. Both the appellant and CNIL sought merger in the name of GTL Infrastructure Ltd. Consequently, they filed petitions before the respective High Courts (Mumbai and Madras) seeking sanction of scheme of merger with the appellant. The Hon'ble Bombay High Court sanctioned the scheme of merger of CNIL with the appellant on 22.07.2011 whereas the petition filed before the Hon'ble Madras High Court is still pending for consideration of sanction of scheme of merger. As the hon'ble Bombay High Court sanctioned th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o so in accordance with law. Therefore, this appeal is before us. 3. Heard both sides. 4. The learned Counsel for the appellant submits that the learned Commissioner himself was competent to decide the issue as per Section 12E of the Central Excise Acts, 1944 read with Section 83 of the Finance Act, 1994 and he was also duty bound to honour the direction of the Hon'ble High Court vide its order dated 27.01.2014. He further submits that the amount in dispute as claimed by the appellant as CENVAT credit has already been paid by CNIL admitting it to be its service tax liability. This fact has been confirmed by the order of competent authority by adjusting the same in VCES scheme. As the CNIL obtained the discharge certificate of service tax liability therefore, the appellant is entitled to take CENVAT credit of the amount of service tax paid on behalf of CNIL by the appellant as CNIL and the appellant has not got the sanction of scheme of merger by the Hon'ble Madras High Court till yet. It is also submitted that the appellant has filed the service tax returns showing the turn over of CNIL with their turn over and discharge of service tax liability of themselves as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, therefore by applying the provisions of Rule 6(4A) of Service Tax Rules, 1994 the appellant will be well within their rights to claim credit of such amount. 4.3 He further submitted that when the department has accepted the duty liability discharged by CNIL, therefore the amount paid by the appellant ceases to be in the nature of service tax and is merely an excess deposit by the appellant. Therefore, the said amount is refundable to the appellant without applying the provisions of Section 11B of the Central Excise Rules, 1944. In this regard the appellant relied upon the decision of the Hon'ble Delhi High Court in the case of Hind Agro Industries Ltd. 2008 (221) ELT 336 (Del.). 4.4 Without prejudice to the above consideration, it is submitted that the cause of action for the appellant to claim re-credit of the cenvat amount paid by them has arisen only on 22.11.2013 i.e. the date on which the revenue accepted the duty liability discharged by CNIL by accepting CNIL's VCES declaration. To support this contention the learned Counsel relied on the decision in the case of Arvind Enterprises v. CC - 2009 (245) ELT 570 wherein it was held that the date from which the lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of CNIL. As the service tax paid by the appellant was not required to be paid, the appellant is entitled to take re-credit of the same in their account. The appellant instead of taking suo motu credit, they approached the Hon'ble Bombay High Court for specific directions and the Hon'ble High Court directed the learned Commissioner to consider the writ petition as a representation filed by the appellant. 7.1 We note that during the course of argument, the learned Spl. Counsel appearing for the Revenue took objection that the impugned order is only a direction to the appellant to appear before the proper officer for examination of their refund claim but the appellant chose to file an appeal before this Tribunal which is not correct. With this regard, we find that although the Tribunal dismissed the appeal holding it not maintainable, the Hon'ble Bombay High Court has intervened holding that the order of the Commissioner (Appeals) is for denial of re-credit of the amount hence, this Tribunal is competent to decide the case on merit. Therefore the contention of the learned Spl. Counsel is not accepted. 7.2 The learned Spl. Counsel appearing on behalf of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir claim of re-credit arose only after the issuance of discharge certificate by the competent authority on 22.11.2013 holding that the duty liability discharged by CNIL. Therefore, the cause of action of taking re-credit of such excess amount paid by the appellant before the Hon'ble Bombay High Court and disposal of the same by the Hon'ble Bombay High Court on 27.01.2014, the same is within one year from the date of acknowledgement of discharge certificate issued by the competent authorities in favour of CNIL, therefore the claim of re-credit is filed by the appellant. Same view has been taken by this Tribunal in the case of Arvind Enterprises (supra) wherein this Tribunal held that - 4. After hearing both the sides, we find that admittedly the appellants' liability to pay duty on the imported goods, was finally adjusted by the department on 13.6.97. In the adjudication order, it was clearly held that the duty payable on the scrap was being adjusted from the duty originaly paid by the appellant. As such, it can be concluded that the refund of excess amount paid by the assessee was due to them as consequence of the adjudication order. The use of expression adjusted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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