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2016 (2) TMI 726 - CESTAT MUMBAI

2016 (2) TMI 726 - CESTAT MUMBAI - 2016 (43) S.T.R. 270 (Tri. - Del.) - Refusal to give refund despite clear direction by the higher authority - Claim of refund of tax paid earlier - Taxability of activity of operation and maintenance of railway tracks as well as maintenance of rolling stock - this is the second round of appeal. - Held that:- The orders of the first appellate authority in the first round are crystal clear in setting aside the rejection of the refund claim after detailed apprecia .....

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to the scope of his authority - In such a scheme for protection of the rights of the individual against arbitrariness of the tax executive, a lower authority is mandated to comply with the orders of the higher appellate authority or to act in accordance with the decision of the reviewing authority. Here the two have coalesced and, by its action of choosing a third option, the original authority has placed himself beyond the pale of acceptable behavior. - Refund allowed - Cost of ₹ .....

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6 dated 13th April 2009 of Commissioner of Central Excise (Appeals), Delhi-I concurring with the rejection of the refund claim by the Deputy Commissioner of Service Tax, Division-III, Delhi. 2. M/s RITES, vide their application dated 24th June 1998, had sought refund claim of 13,05,690/- being tax stated to have been paid in excess as providers of consulting engineers service. They also sought clarification from the Directorate General of Service Tax, Central Board of Excise and Customs, on thei .....

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y 2001. Both these refund claims were rejected by the Deputy Commissioner of Service Tax vide order dated 26th March 2001. The appellant thereafter filed two appeals before the Commissioner (Appeals) who, vide order-in-appeal dated 21st November 2001 allowed consequential relief after setting aside the rejections. These orders were not challenged by Revenue and thus acquired an undeniable finality. 3. Instead of complying with the order of Commissioner of Central Excise (Appeals), the original a .....

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aim without further delay. It is further contended that the refund sanctioning authority had failed to carry out the clear-cut direction of the higher appellate authority which is a violation of basic norms of judicial discipline and that the action of the original authority is tainted by grave impropriety in re-examining an order that had been set aside. It is also contended that the impugned order has failed to appreciate the amendments made w.e.f. 12th May 2000 which extended the period of re .....

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laim after detailed appreciation of facts and circumstances in which the tax had been paid by the appellant besides taking into account the eligibility of the appellant for the refund claim. The original authority was merely required to implement the direction relating to consequential relief. 7. Contrarily, it appears that the refund sanctioning authority took it on himself to sit in judgment on the higher appellate authority by issue of a fresh notice for rejection on the ground of limitation .....

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ee are to be stated comprehensively and completely in the first instance without resort to piecemeal objections. It would appear that the original authority in its determination to deny refund sought to clutch at any straw to achieve that end. By resorting to such tactic, the original authority has, in effect, challenged the appellate as well as the executive authority by refusal to comply with the order of the former and refusal to acquiesce in the acceptance of that order by the latter. 9. The .....

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