TaxTMI 
TaxTMI 
2018 (3) TMI 1679
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....19th August 2010. The respondent has also filed a cross-objections. 2. Revenue disputes the order of Commissioner of Customs, Central Excise & Service Tax (Appeals) Patna and seeks restoration of the order of the original authority primarily on the ground that the issue of taxability is yet to be settled by Hon'ble High Court of Calcutta which is seized of the appeal filed by Revenue against the order of the Tribunal and as the claim for refund originated from a matter that decided the taxability in an appeal of an entirely different entity. Considering the circumstances, and the dispute having reached the Tribunal for a second time, a brief background would serve to elucidate the issues in contention. 3. The claimant for refund is a comm....
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..... Southern Asbestos Industries [2004 (175) ELT 488 (Tri-Bang)] and that of the Hon'ble High Court of Rajasthan in Central Office Mewar Palace Org v. Union of India [2008 (12) STR 545 (Raj)]. The fresh decision of the first appellate authority in order-in-appeal no. 50/PAT/CEX/Appeal/2010 dated 27th April 2010 reiterating the eligibility to refund subject to test of unjust enrichment led to the other appeal of Revenue before us now. While that was yet pending, the second refund claim based on the order impugned was considered by the competent authority and rejected as noted supra and for being barred by limitation of time. 4. According to Learned Authorised Representative, the appeal is been filed as the issue of taxability is yet to be dec....
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....efund. 7. That the decision to allow refund is premature owing to the pendency of the appeal against the unfavourable decision on taxability does not stand the test of law. The provisions for refund, viz., section 11B of Central Excise Act, 1944, do not legitimise rejection on such ground. That the activity of mere forwarding does not constitute taxable service, as decided by the Larger Bench of the Tribunal and, not having been stayed, holds the field till a contrary view is taken by a constitutional court. The Central Board of Excise & Customs has, time and again, directed its field formations not to hold up refunds on the ground that the matter is pending in appeal at some stage. The appeal of Revenue is in direct contravention of this ....