TMI Blog2018 (8) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... ined finality and cannot be offset by demand of refund on the ground that it is erroneous. Appeal allowed - decided in favor of appellant. - ST/724/2008-DB - Final Order No. 21070/2018 - Dated:- 31-7-2018 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri Cheriyan Punnoose, Advocate For the Appellant Smt. Kavitha Podwal, Superintendent(AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dt 06/09/2008 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the assessee. 2. Briefly the facts of the present case are that the appellants are registered under the service tax law for the services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Act, 1994. The original authority found that the judgement in the case of L.H. Sugar Factories Ltd. deals with the issue where the service tax has been demanded by the department under Section 73 of the Finance Act, 1994 whereas the appellant did not furnish any document to the effect that the amount of service tax claimed as refund by the appellant was paid by them against the show-cause notice issued by the department under Section 73 of the Act ibid; that the service tax in the instant case was paid under the validation provisions made under the Act and not against a show-cause notice under Section 73 and hence the judgment in L.H. Sugar Factories Ltd. cannot be the ground for refund of service tax and confirmed the demand of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 10/06/2005 was pending adjudication, the Hon'ble Supreme Court dismissed the appeal filed by the Department against the decision of the Tribunal in the case of L.H. Sugar Factories Ltd. [2005(187) ELT 5 (SC)]. In spite of the decision of the Supreme Court, the Assistant Commissioner vide the Order-in-Original dt. 26/12/2007 confirmed the recovery of service tax refunded to the appellant on the ground that the judgment in the case of L.H. Sugar Factories Ltd. cannot be the ground for refund of service tax which was also upheld by the Commissioner(Appeals). Learned counsel submitted that it is a settled law that the demand cannot be confirmed on the basis of grounds which are beyond the scope of show-cause notice. In this regard, he re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Apex Court. Further we find that the said appeal of the Department was dismissed by the Hon'ble Supreme Court in the L.H. Sugar Factories Ltd. case as cited supra. Further we find that the original order as well as the appellate order, both have been passed on a ground which is not stated in the show-cause notice and therefore, in view of the decisions cited supra, the demand cannot be confirmed on the basis of a ground which is beyond the scope of show-cause notice. Further we find that the Department did not file any appeal against the Order-in-Original No.51/2005 dt. 25/05/2005 granting refund to the appellant which has attained finality and cannot be offset by demand of refund on the ground that it is erroneous and the judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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