TaxTMI 
TaxTMI 
TaxTMI 
2015 (7) TMI 467
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..... The refund claims were rejected by the original authorityby orders numbering from 153 to 156/2007 all dated 28.03.2008. On an appeal filed bythe appellants, the Commissioner (Appeals) in his order-in-appeal dated 13.05.2009 allowed the appeals. Before allowing the appeal the Commissioner (Appeals) called for a verification report from the original adjudicating authority and asked him to clarify whether the 3 conditions specified in the circular issued by the Board regarding place of removal have been fulfilled or not. The 3 conditions are whether the ownership of the goods and the property in the goods remained with the seller of the goods till the delivery of the goods; the seller bore the risk of loss or damage to the goods during trans....
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....he appellants, Commissioner (Appeals) also upheld the order passed by the original authority. Both the lower authorities while undertaking the fresh proceedings, have not dealt with the claims made by the appellant that the original-in-appeal dated 13.05.2009 had attained finality. 3. When the matter was called the learned counsel for the appellants submitted that the order passed on 13.05.2009 by the Commissioner (Appeals) had attained finality in the absence of any appeal filed by the Revenue and therefore all the proceedings initiated thereafter are ab initio void. On merits also he submits that there is absolutely no evidence brought out by the Revenue to show that as to why the verification report submitted by the concerned original a....
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....issuing show-cause notice, only ground taken by the Revenue in the first round of litigation was that appellant was not at all eligible for the credit of service tax paid on GTA service as a receiver of service. No other ground was taken. Normal presumption in such cases, is that, when a claim is received, the claim is examined, verified and if the rejection is to be made all the grounds which are required to be considered before rejection should be considered and all the grounds which can cause rejection of refund claim should be enumerated in the show-cause notice. Unfortunately in this case even at the beginning itself, by failing to issue a detailed show-cause notice covering other grounds, the opportunity to refuse portion of refund wa....
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....ated by the Revenue by issue of a fresh show-cause notice in 2010 culminating in the impugned order before me should be held as sustainable? In my opinion the answer has to be 'no'. Once the order-in-appeal passed on 13.05.2009 attained finality, the only option available to any appellate forum is to say so and any other option, if exercised, would be illegal. It is unfortunate that law enforcing/implementing agency chooses to ignore the law and just because assessee became entitled to refund, proceeded to somehow deny refund, without even considering legal options. The decision of the Hon'ble Supreme Court in the case of Triveni Chemicals Ltd. was rightly relied upon by the learned counsel in this regard. Paragraphs 7, 8 and 9 ....
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....omply with the order passed by the Collector. The authorities were bound to do so in view of the doctrine of judicial discipline. The same having not been done, in our opinion, the plea sought to be raised now that it was for the appellant to prove that the burden of the duty had not been passed to the customers cannot be accepted." 8. In that case also, the fresh round was started by the Revenue on the ground that question of unjust enrichment was not considered in the initial round and Hon'ble Supreme Court said that once the order attained finality, even on the ground of unjust enrichment, fresh proceedings could nothave been initiated. This case stands on a worse ground. In this case the same groundon which Commissioner (Appeals) h....