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TMI Blog2018 (6) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... Services (herein after 'BOFS'). The appellant had filed a refund claim dated 27/07/2012, which was received in the Assistant Commissioner's office on 30/07/2012. The refund was in respect of the Service tax that was paid by the appellant vide GAR challan dated 30/07/2011 consequent to the Audit of the unit by the Internal Audit Party of the department. As per the provisions of Section 11B of the Central Excise Act 1944, applicable to Service Tax as per Section 83 of the Finance Act, 1994, the refund application has to be filed within one year from the relevant date. Since the one year period had expired on 29/07/2012 relying on the ruling of the Apex Court in the case Mafatlal Industries vs. UOI, the refund claim was rejected vide Order-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks of accounts of the claimant, the same is liable for Service Tax as rightly pointed out by the Audit", While coming to this conclusion, the lower authority has again discussed the applicability of the tax under BOFS and has stated that the appellant had provided the service and the payment of Rs. 482518/- during the audit was in order. On the basis of merits of the issue, the refund claims filed by the appellant was rejected by the lower authority. 2.3 The appellant, once again filed an appeal before the Commissioner (Appeals) in Appeal No. 138/13/MY/ST and an Order-in-Appeal bearing No.74/2014 dated 22.8.2014 was passed by the Commissioner (Appeals), Mysore. In the said Order-in-Appeal, the Order-in-Original was quashed and set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that in para 10.1 of the Order-in-Appeal dated 22.8.2014, the learned Commissioner (A) has held as under: "As the impugned order fails at the threshold, it consequences will follow as a matter of course: They have (appellant) urged for refund of the said sum. This is found to be correct and acceptable. They would be eligible for the refund of the same Rs. 4,83,518/- only due to them in terms of Section 11B of the Central Excise Act". They would also be eligible for interest due and payable to them in terms of Section 11BB of the Central Excise Act". 4.1 Learned consultant further submitted that in view of this categori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en discussed and the appellants are liable to pay service tax. As per the discussion made by the Deputy Commissioner, he has wrongly sanctioned the refund on the pretext of following the judicial discipline because on merit the appellants are not entitled to the refund. 6. After considering the submissions of both the parties and perusal of the records, I find that the Commissioner (A) vide his order dated 22.8.2014 in para 10.1 has clearly held that the appellants are entitled to refund and he directed the lower authority to grant the refund along with interest and the original authority after following the directions of the Commissioner (A) has allowed refund along with interest, Further, I find that this categorical finding by the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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