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Commissioner of Central Excise Versus M/s Dharwad Co-Operative Milk Producers Societies Union Ltd.

2015 (7) TMI 888 - KARNATAKA HIGH COURT

Denial of Refund claim - Unjust enrichment - Goods Transport Operator service - Held that:- if the revenue was aggrieved by the OIA No.237/2005 CE, it ought to have taken such further action in accordance with law. It is trite law that once the appeal is allowed in favour of the assesse, the assessee must be entitled to all the benefit flowing there from. The Assistant Commissioner while dealing with the application for refund was not justified in sitting in judgment over the findings of Commiss .....

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n to the order passed by the CESTAT by allowing the appeal. No substantial questions of law arises for consideration of this case - Decided against Revenue. - CEA No. 4/2008 - Dated:- 8-6-2015 - Ravi Malimath And P. S. Dinesh Kumar, JJ. For the Appellant : Sri S N Rajendra , Adv. For the Respondent : Sri Anvar Ali, Adv. JUDGMENT The revenue has preferred this appeal on substantial questions of law as to whether the appellant was entitled to invoke Section 71A of the Finance Act 2003 and whether .....

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rted requiring the service receiver in case of GTO service, to pay the service tax and to file return within six months from the date on which Finance Act came into effect. The Adjudicating Authority vide order dated 17.03.2005 in OIO No.02/2005 confirming the assessment appropriated the amount paid by the assessee and demanded interest under Section 75 of the Finance Act 1994. In compliance thereof the assessee paid a service tax of ₹ 5 ,76,257 /- vide T.R.6. challan on different date end .....

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6 ST and called upon the assessee to show cause as to why service tax should not be demanded for the period 16.11.1997 to 01.06.1998 under Section 73 of the Service Tax Act and the interest thereon should not be demanded. On receipt of notice, the assessee submitted a reply dated 18/20.03.2006 and requested for refunds of the amount deposited by them. The Assessing Authority namely the Assistant Commissioner vide OIO dated 17.05.2006 rejected the refunds claim while holding thus: "17. In vi .....

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ate Authority was challenged before the CESTAT in ST No.293/2006 which came to be allowed vide order dated 14.06.2007. 4. Being aggrieved by the order passed by the CESTAT, revenue has preferred this appeal by framing following substantial questions of law. "14. Whether the Revenue was entitled to invoke Section 71A of the Finance Act, 2003, which has been made operational retrospectively? 15. Whether the case of L H Sugar Factory vs. CCE Meerut (187) ELT 5 SC is applicable to the facts of .....

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records. 6. The issue involved in this case is refund claim putforth by the assessee for refund of service tax and the interest deposited by the assessee after their appeal in OIA No.237/2006 was allowed by the Commissioner of Central Excise (Appeals), Mangalore. It is not in dispute that the assessees have received service from Goods Transport Operator during the period 16.11.1997 to 01.06.1998. It is also not in dispute that in terms of retrospective amendment of the Finance Act, the assessee .....

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