2024 (6) TMI 193 - AT - Service Tax

Fresh refund claim under Notification 4/2004-ST rejected after earlier partial rejection attained finality

M/s. Vedanta Aluminium Limited Versus Commissioner of (Appeals), Central Excise Customs & Service Tax, Bhubaneswar

CESTAT Kolkata dismissed the appeal where appellant filed fresh refund claim under Notification No. 4/2004-ST for service tax paid during March 2009, ... Refund claim - part refund rejected on the ground that refund under Notification No. 4/2004-ST has no linkage with refund under Notification No. 9-2009-ST - whether refund under Notification No. 4/2004-ST ought to be treated as fresh application? HELD THAT:- As per Notification No. 9/2009-ST dated 03.03.2009, the Appellant filed two refund claims of service tax paid to the works contract service providers of Rs. 45,06,130/- (Appeal No. 1) and Rs. 1,00,33,793/- (Appeal No. 2) in respect of such input services received for authorized operations of SEZ unit from 03.03.2009 to 19.05.2009. The Ld. adjudicating authority passed the Order-in- Original No. (R)2 &3/Refund/S.Tax/SBP-I/2010 dated 21.04.2010, sanctioning part of the refund claims and rejected refund pertaining to 2 days viz. 01.03.2009 and 02.03.2009, prior to issuance of Notification No. 9/2009-ST, since such service providers had issued invoices for the entire month of March 2009. The appellant has not challenged this Order-in-Original and hence this order has attained finality. If the appellant is aggrieved against the order for rejecting the refund for the two days, they would have filed appeal against the order dated 24.04.2010. Instead, the appellant has chosen another route and filed a fresh refund claim for the same period, which has already been rejected by the Order dated 21.04.2010. Since no appeal has been filed against the order-in-original dated 21.04.2010, it attained finality. The appellant themselves claimed that they have paid the consideration after 03.03.2009 i.e., from 14.04.2009 to 10.06.2009 and 24.04.2010 to 25.06.2010. Thus, in their own admission, the invoices were not issued during the period when Notification 4/2004-ST was in operation. The finding of the adjudicating authority in the impugned order dated 21.04.2010 cannot be a reason for them to state that the services were rendered when Notification 4/2004-ST was in operation. If the findings of the adjudicating authority is wrong or not acceptable to them, the only recourse available to them was to file appeal against the order dated 21.04.2010, which they have not done. The adjudicating authority has rightly rejected the fresh refund claim, which has already been rejected vide order dated 21.04.2010 and the rejection has attained finality - there are no infirmity in the impugned order. Appeal dismissed. Issues involved: Two appeals filed against a common Order-in-Appeal regarding refund amounts under Notification No. 9/2009-ST for input services received by an SEZ unit.Details of the Judgment:Issue 1: Refund Claim under Notification No. 4/2004-ST The Appellant, an SEZ unit, applied for refund under Notification No. 9/2009-ST for service tax paid on input services. The refund claims were denied for two days prior to the issuance of the notification. The Appellant contended that the service tax paid during this period was collected without authority of law as per Notification No. 4/2004-ST, which provided outright exemption from service tax. The adjudicating authority rejected the refund claims citing various grounds including time limitation u/s 83 of the Finance Act.Issue 2: Eligibility for Refund under SEZ Act The Appellant argued that as per Section 26(1)(e) of the SEZ Act, service tax is not payable on services provided to SEZ units. They claimed that any tax paid despite exemption should be treated as a deposit and refunded, without being subject to time limitations. The Appellant cited legal precedents to support their claim and emphasized the primacy of SEZ laws over other legislations.Issue 3: Finality of Previous Order The Ld. A.R. contended that since the Appellant did not appeal the earlier Order-in-Original rejecting the refund claims, it had attained finality. The Appellant's subsequent fresh refund claim for the same period was deemed inadmissible as the previous rejection had not been challenged.Judgment Summary: The Tribunal noted that the Appellant's refund claims had already been rejected in a previous order that had attained finality. The Appellant's failure to appeal the initial rejection precluded them from filing a fresh claim for the same period. The Tribunal upheld the rejection of the fresh refund claim, emphasizing that the earlier rejection had conclusive effect. The legal arguments and precedents cited by the Appellant were deemed irrelevant in light of the finality of the previous decision.Conclusion: The appeals filed by the Appellant were rejected by the Tribunal, affirming the rejection of the fresh refund claim due to the finality of the earlier decision.(Order Pronounced in Open court on 05.06.2024)