TaxTMI 
TaxTMI 
2022 (5) TMI 1395
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....sistant Commissioner, Goods and Service Tax (GST), and the show cause notice, dated 20.02.2020. 3. Mr. Puneet Agarwal, who appears on behalf of the petitioner, says that, the impugned order and show cause notice are flawed, broadly, for the following reasons: (i) The impugned order, dated 30.06.2020, was passed by an officer who had no jurisdiction to pass the said order. According to Mr. Agarwal, demand for service tax in excess of Rs.50,00,000/- could have been adjudicated upon only by Additional/Joint Commissioner or a Commissioner [if the demand exceeds Rs.2,00,00,000/-]. (ii) In this behalf, Mr. Agarwal has relied upon paragraph 11.1 of the Central Board of Excise and Customs (CBEC) circular bearing no. 1053/02/2017-CX, dated 10.03.2017. (iii) No pre-show cause notice consultation was carried out, although, the demand was over Rs.50,00,000/-, which was a requirement of paragraph 5 of the aforementioned circular dated 10.03.2017 (iv) No hearing was given to the petitioner prior to passing of the impugned order. (v) The impugned order has gone beyond the order of remand, passed by the Commissioner, Appeals-I, GST, Delhi [here....
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.... e-mail. 5.1. Counter-affidavit will be filed by the respondent/revenue, within four weeks from the date of receipt of notice. 5.2. The respondent/revenue, in their counter-affidavit, apart from anything else, will also indicate the amount that has already been paid by the petitioner towards service tax and cess, during the relevant period(s) i.e., October 2016 to March 2017 and April 2017 to June 2017. 5.3. The counter-affidavit will also indicate the liability towards service tax and cess, which the petitioner, according to the respondent/revenue, is mulcted with, as per the ST-3 return. 6. In the meanwhile, there shall be a stay on the operation of the impugned order, dated 30.06.2020. 7. List the matter on 03.12.2021." 2. The respondent/revenue entered appearance in the matter on 03.12.2021, when opportunity was granted to the petitioner to file a rejoinder to the counter-affidavit filed by the respondent/revenue. 2.1. Thereafter, the matter was taken up on 08.04.2022. On that date, after hearing the learned counsel for the parties, a brief order was passed, wherein, inter alia, it was recorded that the period in issue, in resp....
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.... of Rs.2,69,03,927/ - of which the service tax element was Rs.2,50,30,397/ - and cess element was Rs.18, 73,530/-. The appellants have mainly contended that they should have been refunded the amount deducting the utilized amount of CESS which they had utilized towards payment of tax liability, details of which are as under: TABLE-II (Amount in Rs.) CESS AMOUNT OF CESS ACTUALLY PAID AMOUNT UTILIZED UNUTILIZED AMOUNT KRISHI KALYAN CESS 1807727 862480 945247 SWACHH BHARAT CESS 1886915 958632 928283 TOTAL 3694642 1821112 1873530 8. The Appellants have thus claimed that unutilized cess amount was only Rs.18,73,530/- and not Rs.36,94,642/- , as held by the Adjudicating Authority. Thus, the refund of Rs. 18,21,112/- more was required to be sanctioned by AA even if cess was not refunded. Further, the appellants have claimed that refund of cess could not be rejected since Section 119 & 161 of Finance Act, 2015 and Finance Act 2016 respectively provide that provisions of Chapter V of the Finance Act, 1994 (relating to Service Tax) including those relating to refunds apply to Swachh Bharat Cess and Krishi Kalyan Cess respectively. ....
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.... already passed its Order-in-Original dated 30.06.2020. Before us, it is this order that has been assailed by the petitioner. 5.1. Via the order dated 30.06.2020, the adjudicating authority has, inter alia, concluded that the petitioner had short paid towards tax, an amount equivalent to Rs.2,15,39,257/- and 1,03,05,282/-. In the operative part of the said order, the adjudicating authority issued the following directions: "(i) I hereby reject refund claim of Rs.18,21,113/- (Service Tax) and Rs.18,73,530/- (SBC & KKC) to M/s. Delhi & District Cricket Association, Ferozshah Kotla Grounds, New Delhi. (ii) I order to recover Rs.2,15,39,257/- and Rs.1,03,05,282/- short paid by the assessee during the period April 2017 to June 2017. (iii) I order to recover Rs.3,38,363/- as SBC for the period April, 2017 to June, 2017 along with interest and penalty at applicable rates from the assessee. (iv) I order to recover penalty of Rs.9,100/- towards late filing of Service Tax returns for the period October 2016 to March 2017 and April 2017 to June 2017 by 88 days and 43 days respectively." 6. Mr Puneet Agarwal, who appears on behalf of the petitioner, say....
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....uld show that the petitioner had unequivocally stated that it would not claim interest on refund amount claimed i.e., Rs.2,69,03,927/-. 9. Having heard the learned counsel for the parties, we are of the view that there are several infractions in terms of the procedure, as well as with regard to the merits of the matter. 9.1. There is no dispute raised before us that no consultation notice prior to the issuance of the impugned show-cause notice dated 20.02.2020 was issued; something which is completely contrary to the provisions of the master circular dated 10.03.2017. 9.2. It is also not disputed that before passing the impugned assessment order dated 30.06.2020, no personal hearing was granted to the authorized representative of the petitioner. 10. This apart, the impugned order has clearly gone beyond the directions contained in the order of remand i.e., order dated 30.05.2019, passed by the Commissioner (Appeals-I). 10.1. The Commissioner (Appeals-I) had remanded the matter to the adjudicating authority via order dated 30.05.2019, on two counts. First, that no reason furnished, as to why refund of Rs.36,94,642/- was not accorded. Second, as to why interest ought n....