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2016 (3) TMI 141 - CESTAT MUMBAI

2016 (3) TMI 141 - CESTAT MUMBAI - 2016 (43) S.T.R. 117 (Tri. - Mumbai) - Legality 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 i .....

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nting 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 .....

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t said to be legal and to be decided as afresh by the original authority. - Appeal disposed of - Appeal No. ST/614/2010 - Final Order No. A/85651/2016-WZB/STB - Dated:- 10-2-2016 - M V Ravindran, Member (J) And CJ Mathew, Member (T) For the Appellant : Shri Prasad Paranjape, Advocate For the Respondent : Shri K.S. Mishra, Addl. Commissioner (AR) ORDER Per CJ Mathew M/s Persistent Systems Pvt Ltd has filed this appeal in relation to two refund claims preferred by them for ₹ 38,94,950/- on 2 .....

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the records that service tax authorities took up their activities for scrutiny and called for their detailed explanation for alleged failure to pay tax on services. Despite assertion that they were not liable to tax for the period prior to 16 th June 2005, vide their letter dated 19 th December 2007, they paid service tax of ₹ 38,94,950/- as providers of management, maintenance and repair service' and ₹ 1,38,941/- as providers of business support services' for the period Apr .....

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to the cautionary payment under protest.' These refunds were not sanctioned; instead notices dated 5 th May 2008 and 7 th May 2008 were issued to them for rejection of the refunds. It appears from the records that the original authority was made aware through their reply dated 9 th June 2008 that proceedings for appropriation of these very same amounts towards service tax dues was underway. As that matter was yet to attain finality and there was no provision to keep a refund claim in abeyanc .....

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te authority in its order-in-appeal no. PIII/VM/159/2010 dated 9 th July 2010 did not accede to the plea on the ground that there was no provision in the statute for keeping a refund application in abeyance and reiterated the observation of the lower authority that appellant was eligible to file refund claim after the proceedings for recovery of tax allegedly short-paid attain a finality. Thus the matter reaches us. 3. We have heard the rival submissions and perused the records. At the outset, w .....

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ty is also before us and decision in that would, undoubtedly, confirm or deny eligibility for refund. 4. However, that would not dispose off the appeal against the impugned order which has neither conceded the claim for refund or rejected it. This appeal before us is for rendering a decision on the legality and propriety of the direction in the impugned order, i.e. the return of the refund application to the appellant sans sanction or rejection. 5. We, therefore, desist from any reference to our .....

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he law and which borders on impossibility of implementation. The same law that did not consider it necessary to provide for keeping a decision in abeyance but has, on the contrary, attached penalty consequences to such holding in abeyance also did not provide for returning of a refund claim. The justification put forth by the two lower authorities appears to defy logic. 6. Justification afforded for the act of returning the claim appears to flow from it being premature.' Implicit in such a d .....

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tute. 7. Besides statutory impropriety and fallacious description, a consummation disconnect is also perceptible. 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 o .....

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ory authority should be cautious in staking the credibility of the institution that they represent. 8. That the appellant is not put to any disadvantage or detriment is not relevant to the circumstances. 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 assessm .....

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