Regarding consideration of refundable amount as pre deposit of CESTAT Appeal

[Shaubhik Gupta]

In an appeal to be filed before Hon'ble CESTAT, assessee wants to understand that if assessee has a refundable amount of Service Tax originating from favorable order of Commr. Appeals, can that amount be submitted as a pre-deposit of disputed service tax amount for the purpose of CESTAT appeal for complying with requirement of pre-depsoit of appeal. As a matter of fact, the favorable order from Commr. Appeals and current CESTAT appeal are originating from the same Show Cause Notice, adjudicated vide a single OIO, where one set of demands is dropped by Adjudicating Authority and confirming one demand. Now the demand dropped were reviewed and appealed against by revenue, subsequently allowed in revenues favour by Commr. Appeals, while the other demand confirmed by adjudicating authority is challenged by assessee, after depositing the pre-deposit required for filing first appeal. This appeal is allowed by Commr. Appeals in assessee's favour and pre-deposit is now refundable. The other set of demand confirmed by Commr. Appeals in revenues favour is being challenges by assessee now. Now whether the assessed can consider the amount already deposited and which is now refundable to be considered as pre-deposit for CESTAT appeal compliance purpose. If it can be considered, then should assessee submit a letter or mention this fact in the appeal along with enclosing the challan of pre-deposit and favorable order from Commr. Appeals.

[KASTURI SETHI]

Sh.Shaubhik Gupta Ji,

Pl. go through this case law and examine it. It may be useful for you.

2021 (1) TMI 928 - MADRAS HIGH COURT CHENNAI CITI CENTRE HOLDINGS (P) LTD. Versus COMMR. OF SERVICE TAX (APPEALS-I), CHENNAI

[KASTURI SETHI]

In the scenario given by you, SCN is same and Order-in-Original is same. The amount of 'Pre-deposit' is made against particular Service Accounting Code ( whether of Service Tax or interest or penalty/fine/late fee). So in my view it should be adjusted. In the case law posted above, the pre-deposit was allowed to be adjusted against an other appeal of the same party. You can rely upon this case law.

AI Summary

Adjustment of pre deposit: refundable deposit from a favorable appeal may satisfy pre deposit requirement for related CESTAT appeal.
A refundable pre deposit obtained from a Commissioner (Appeals) order can be adjusted and treated as the required pre deposit for a subsequent CESTAT appeal where both appeals arise from the same Show Cause Notice and Order in Original; because pre deposits are tied to particular Service Accounting Codes, the assessee should file the CESTAT appeal enclosing the original challan and the favourable Commissioner (Appeals) order to evidence entitlement to apply the refundable amount against the new pre deposit obligation.