2019 (2) TMI 953

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....liable to service tax under the category of "Commercial Training or Coaching Services". As such service tax demand of around Rs. 5.26 crores was raised against them by way of the show cause notice, which was confirmed by the Original Adjudicating Authority. The order of the Commissioner was appealed against by the assessee before the Tribunal who vide its Final Order No.ST/A/56872-56885/2013-U(DB) dated 02.07.2013 set aside the same and held that the services provided by the appellant cannot be held to be taxable. The said order of the Tribunal was appealed against by the revenue before the Lucknow Bench of Hon'ble Allahabad High Court, who rejected the revenue's appeal. 2. However, it seems that subsequent to the confirmation of demand ....

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.... upheld by Commissioner (Appeals). Hence, the present appeal by the appellant. 4. Arguing the matter, learned Chartered Accountant Shri Dharmendra Srivastava submits that they were initially not paying service tax, when a demand of show cause notice was issued to them raising demand of service tax for the period from 2004-05 to 2009-10. The said show cause notice was confirmed by the Commissioner and hence, thereafter they started paying service tax on the activity undertaken by them. The dispute in the earlier case reached the Tribunal and subsequently before the Hon'ble High Court of Allahabad. Both the authorities have held that the appellant is not liable to pay any tax. As such, he submits that the relevant date should be considered....

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....eriod and decision is pending till date. Therefore, in the situation, I am of the view that the 'date of payment of duty' is the relevant date as per clause (f) of Explanation (B) of Section 11B (5) of the Central Excise Act, 1994. Thus, the refund claim of the appellant is premature as the demands pertaining to the period in question are sub-judice as also the decision of High Court has not reached finality being challenged before the Apex Court by the department. The refund claim has been filed after the expiry of one year from the relevant date i.e. date of payment of duty and the same is non-maintainable on limitation aspects as well." 6. Admittedly, the period before the Hon'ble High Court was from December, 2009 to October, 2012. T....