TaxTMI 
TaxTMI 
2015 (1) TMI 1051
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....lecommunication network. The petitioner is engaged in providing business auxiliary services and infrastructural facilities to various telecom companies. The petitioner is having a centralized service tax registration and is filing its returns regularly. One M/s.Chennai Network Infrastructure Limited, a company situate at Navi Mumbai, Dist. Thane is also in the same business. The petitioner and said M/s.Chennai Networks Infrastructure Limited ('M/s.CNIL' for short) agreed to merge their activities. It filed a scheme of merger before this Court and the Madras High Court. Learned Single Judge of this Court exercising company jurisdiction allowed the Company Scheme Petition No.295 of 2011 filed by the petitioner on 22nd July, 2011 and the scheme of merger was sanctioned. Similar Company Petition No.77 of 2011 in Madras High Court had been filed by M/s.CNIL and that is pending. In the light of the order passed by this Court, a consolidated return of service tax liability was filed and a sum of Rs. 79,92,56,619/- being the liability of service tax dues of M/s. CNIL from October, 2010 to March, 2012 was paid. 3. Later on, the petitioner was advised that though this Court has san....
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....nvat credit account be considered and a speaking order be passed thereon after hearing the petitioner, then, the Tribunal has taken a hyper technical view. Annexure-A is nothing but an order passed by the authorities under the Act. Customs, Excise & Service Tax Appellate Tribunal is a Appellate Authority and it has been approached because of the rejection of the petitioner's plea claiming the refund or credit of cenvat credit. In such circumstances, and according to the tenor of this Court's order in the earlier writ petition passed on 27th January, 2014, we are of the view that this writ petition can be disposed of with the following order:- (a) The order passed on the representation / application of the petitioner and in terms of the Division Bench direction dated 27th January, 2014 in Writ Petition No.621 of 2014 is nothing but a speaking order on the Refund Application. (b) It is appealable to Customs, Excise & Service Tax Appellate Tribunal, who shall now allow the petitioner to proceed with the appeal filed before it in accordance with law. In the event the appeal is not existing on its file, the petitioner may be permitted to file a fresh appeal challenging the c....
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....d discharged the same on 22.11.2013. The designated authority issued a Discharge certificate to CNIL under VCES scheme for the above said liability. CNIL informed the appellant that all service tax liability has been paid by them and they have no objection to the appellant taking credit of service tax paid on behalf of CNIL. Out of abundant caution, the appellant approached the Hon'ble Bombay High Court in a Writ Petition to seek approval of the Hon'ble High Court to re-credit the amount of service tax paid on behalf of CNIL, the Hon'ble Bombay High Court vide order dated 27.01.2014 directed the learned Commissioner to decide the matter by considering the said Writ Petition as a representation before the Commissioner. On 7.3.2014, the learned Commissioner directed the appellant to approach the proper officer for pursuing the remedy. The appellant has challenged the order of the learned Commissioner before this Tribunal and this Tribunal has dismissed the appeal of the appellant against the impugned order holding that the same is not maintainable. The said order of this Tribunal was challenged before the Hon'ble Bombay High Court and the Hon'ble Bombay High Court....
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....ent of Hon'ble Bombay High Court in the case of CCE vs. CEAT Ltd. - 2013 (298) ELT 525 (Bom) to say that the Hon'ble High Court of Bombay approved that the assessee taking suo motu credit of additional excise duty after having paid the same to the Revenue through PLA. He also relied upon the decision of this Tribunal in the case of Vodafone Essar Digilink Ltd. - 2011 (31) STR 751 (Tri.Del) wherein this Tribunal approved suo motu claiming of credit by the assessee after payment of equal amount in cash. The learned Counsel prayed that applying the ratio of the above decisions to the present case, it is evident that CNIL has discharged its service tax liability in cash under the VCES scheme, therefore the appellant is entitled to take re-credit of the service tax paid on behalf of CNIL. 4.2 He further submitted that as per the provisions of Rule 6 (4A) of Service Tax Rules, 1994 where an assessee has paid to the credit of the Central Government any amount in excess of the amount required to be paid towards service tax liability, the assessee may adjust such excess amount paid by him against his service tax liability for the succeeding month. In the present....
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.... appellant has no faith on the Revenue Officers. He also submitted that the appellant is not entitled for re-credit of the amount paid on behalf of CNIL as the same is barred by limitation. Admittedly, the service tax has been paid by the appellant on behalf of CNIL and sought to re-credit the same after passing a period of one year, the period as prescribed under Section 11B of the Central Excise Act, 1944. He also relied on the case law in the case of Vighnahar SSK Ltd. vs. CCE - 2012 (275) ELT 108 (Tri. Mum), BDH Industries Ltd. v. CCE - 2008 (229) ELT 364 (Tri. Mum) and Automotive Metal Stampings Pvt. Ltd. vs CCE - 2011 (272) ELT 603 (Tri. Mum). In these circumstances, he prayed that the appeal filed by the appeal is required to be dismissed. 6. Considered the submissions made by both sides. 7. The facts of this case are not in dispute that the appellant has paid the service tax for the period October 2010 to March 2012 on behalf of CNIL considering that the appellant is liable to pay service tax on behalf of CNIL after the sanction for the scheme of merger by the Hon'ble Bombay High Court. It is also an admitted fact that as permission for scheme of m....
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.... under Central Excise Act, 1944 and Rules allowing suo motu taking of credit or refund without sanction by proper officer. In fact, in this case, neither CNIL nor the appellant got the refund or took suo motu credit. Therefore, the facts of BDH Industries Ltd. (supra) are not applicable. 7.5 In the case of Automotive Metal Stampings Pvt. Ltd. (supra) this Tribunal held that "the learned Advocate for the appellant was requested whether the appellants could reverse the credit taken by them suo motu with interest and file a refund claim which can be considered by the department as fast as possible, in that situation the appellants was directed to reverse the credit taken suo motu. In this case, the appellant is seeking permission to re-credit the amount of service tax paid. Therefore, the case law relied by the learned Spl. Counsel for the Revenue is of no help to him to deny the re-credit. 7.6 We have seen that the learned Spl. Counsel has also raised the issue of limitation. In this case, it is an admitted fact that the amount paid by the appellant is not required to be paid by the appellant as service tax and they have discharged the service tax liability of CNIL during the imp....