2023 (10) TMI 959 - AT - Service Tax

Appeal Partly Allowed: Interest Granted for 55-Day Delay in Refund, Cenvat Credit Eligibility Unchallenged at Refund Stage

The Tribunal partly allowed the appeal, granting interest for 55 days due to a delay in refund beyond three months from the claim date. The full refund ... Refund of CENVAT Credit - Interest as per Section 11BB - Denial of refund on the ground that credit which has been claimed as refund claim under Rule 5 was not admissible to them - Pest Control Service - HELD THAT:- In absence of any proceedings under Rule 14 of Cenvat Credit Rules, 2004 observations recorded by the Assistant Commissioner in above paras 8.1 to 8.10 of the order in original are only in nature observation cannot be taken as denial of the credit. Even Assistant Commissioner has nowhere said so she only find this amount to ineligible for refund, but even after holding them to be ineligible for refund has allowed the refund claim filed by the appellant in toto. Appellant filed an appeal before the Commissioner (Appeals) not against the order of the Assistant Commissioner but against these observations made in the discussions and findings of the order. Commissioner (Appeals) modified these findings without any change in order portion which in any case was in accordance with the claim made by the appellant - Revenue has not filed any appeal either before Commissioner (Appeals) or before this Tribunal for seeking modification of the refund of Rs.19,00,00,000/- (rupees Nineteen Crores only) allowed by the Assistant Commissioner. As the show cause notice issued involved in this appeal has not invoked the provision of Rule 14, therefore, any finding regarding admissibility of CENVAT credint in the impugned Order-in-Original, the impugned Order-in-Appeal or in this Final Order will not have any effect on any proceedings, if any, regarding the admissibility of Cenvat credit. Interest as per Section 11BB - HELD THAT:- As per Section 11BB interest is to be paid after expiry of three months from the date of filing the claim to the date of claim. In the present case refund claim was filed on 27.12.2012 the period of three months will be over on 26.03.2013. They would be entitled to the interest for the period beyond 26 March, 2013 to the date of payment i.e. 21.05.2013, which is about 55 days. To that extent appeal is allowed in favour of the appellant. Appeal is partly allowed for grant of interest for 55 days. Issues Involved:1. Eligibility of Cenvat Credit at the stage of refund.2. Jurisdictional objections.3. Interest on the refund claim.Summary:1. Eligibility of Cenvat Credit at the Stage of Refund:The appellant filed a refund claim of Rs. 19,00,00,000/- under Rule 5 of the Cenvat Credit Rules, 2004. The Assistant Commissioner sanctioned the full refund amount but noted certain credits as ineligible. The appellant contended that the eligibility of Cenvat Credit cannot be questioned at the refund stage, citing various legal precedents. The Tribunal agreed, stating that Rule 5, as amended in 2012, does not require examining the admissibility of credit at the refund stage. The Assistant Commissioner, after applying the prescribed formula, concluded that the entire refund claim was admissible and sanctioned it. The Tribunal found no reason to interfere with this order, emphasizing that the appellant could not be aggrieved since the full claimed amount was refunded.2. Jurisdictional Objections:The appellant argued that jurisdictional objections cannot be raised at any stage of litigation, referencing decisions like *Macnair Exports (P) Ltd. v. Commissioner of Customs, Cochin*. The Tribunal did not find any specific jurisdictional issues affecting the case's outcome.3. Interest on the Refund Claim:The appellant claimed interest under Section 11BB for the delay in refund. The Tribunal held that the appellant was entitled to interest for the period beyond three months from the date of filing the claim (27.12.2012) to the date of payment (21.05.2013), amounting to 55 days. The appeal was partly allowed to grant interest for this period.Conclusion:The Tribunal partly allowed the appeal for the grant of interest for 55 days and found no merit in other parts of the appeal, as the full refund amount claimed was already sanctioned. The Tribunal emphasized that any findings regarding the admissibility of Cenvat credit in the impugned orders would not affect future proceedings on this issue.