2018 (12) TMI 731

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....Mazgaon Doc Ltd. (MDL) and Tata Power through work contract agreement and after completion of the work, rate was reduced on renegotiation by both firms against which appellant raised credit notes to their customers for differential rate in the value of services provided and service tax component. The refund claim for excess service tax paid between the period April 2013 to March 2014 amounting to Rs. 28,18,361/- was filed on 30.07.2015 and the adjudicating authority rejected the refund claim filed under Section 11B on the ground that the same was not filed within the stipulated time. Appellant has not challenged the rejection order but put forth its claim with reference to judicial decisions that it was eligible to avail cenvat credit as pe....

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....tax was not paid solely in cash and paid in both cash as well as adjusted against cenvat credit available at the claimants end. He also noted the claimant did not receive the value of the services provided under the Service Tax Rules for which refund is claimed. Further, the Commissioner (Appeals) in his order dated 10.01.2018 also noted that after finishing the work the rate was reduced by MDL from Rs. 150/cubic mtr. of dredging work to Rs. 130/cubic mtr. and the refund claim pertains to service tax paid on differential amount of Rs. 20/- and the reason of such reduction of rate is unknown. In para 5 of his order, he has observed that in case of excess payment, law provides (i) to take credit under Rule 6(3) or (ii) to adjust the excess am....

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.... it was not the subject matter of appeal. Going by Section 35A(3) of the Central Excise Act, which is equally applicable to service tax matters, the Commissioner (Appeals) shall make such further enquiry as may be necessary, pass such order as he thinks just and proper in confirming, modifying or annulling the decision or order appealed against and in view of the decision of the Hon'ble Apex Court made in MIL India Ltd. vs. CCE 2007 (260) ELT 188 (SC) the Commissioner (Appeals) can also act as an adjudicating authority. Therefore, he cannot just confine his findings to the order appealed from since he has also to act like an adjudicating authority to examine documents, scrutinize records or hear such appellant during such enquiry. 7.....