AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (3) TMI 577
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....oms in exercise of the powers conferred by section 83A of the Finance Act 1994, as amended, read with Notification No. 30/2005-Service Tax dated 10.08.2005, as amended, and Notification No.16/2007-Service Tax dated 09.04.2007. 2.1 The brief facts of the case are that the appellants herein are engaged in the business of a banking company operating through various branch offices situated across India and having their head office in London, United Kingdom. The appellants provide various services to their customers such as Banking & other Financial Services, Business Auxiliary services, renting of immovable property services, cash management operations, utilities, loans processing, securities services, credit risk control, financial market operations and compliance & assurance, handling transaction processing activities across various product lines including credit cards, personal loans, current account and savings account, mortgage raising and corporate Finance solutions across all its domains. In order to comply with the service tax law, the appellants had taken centralized registration and holding service tax registration certificate No. AABCS4681DST003. 2.2 During the course ....
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....disputed issue is 'pre- mature' and therefore it cannot be processed. Accordingly, he held that the refund claim filed by the appellants is not admitted and is liable to be rejected as pre-mature. However, he gave an option to file the refund claim afresh in accordance with the decision that may be taken by the Commissioner of Service Tax-I, Mumbai in such disputed claim, upon adjudication of the SCN dated 08.10.2022. Being aggrieved with the said order dated 21.06.2013 of the original authority, the appellants had filed an appeal before the Commissioner (Appeals) on 23.08.2013. In deciding the appeal, the Pr. ADG in acting as the First Appellate authority, had passed the impugned order rejecting the appeal filed by the appellants and in upholding the order of the original authority. Feeling aggrieved with the impugned order, the appellants have filed this appeal before the Tribunal. 3.1 Learned Advocate appearing for the appellants had submitted that the disputed issue of demand of CENVAT credit on alleged exempt services under SCN dated 08.10.2022 was adjudicated by the Commissioner, Service Tax-IV Commissionerate, Mumbai in dropping the entire demand of Rs.86,70,43,899/- and ....
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....) Commissioner of Service Tax, Ahmedabad Vs. Bharat Sanchar Nigam Limited - 2023 (7) TMI 1123 (CESTAT AHMEDABAD) (vii) Chambal Fertilizers & Chemicals Ltd. Vs. Commissioner of CGST, Udaipur - 2023 (71) G.S.T.L. (Tri. - Del.) (viii) Commissioner of C. Ex. Lucknow Vs. Eveready Industries India Ltd. - 2017 (357) E.L.T. 11 (All.) (ix) CBIC Circular No. 984/08/2014-CX dated 16.09.2014 (x) CBIC Circular No.802/35/2004-CX dated 08.12.2004 (xi) CBIC Instructions F. No. 275/37/2000-CX.8A dated 02.01.2002 4. Learned Authorized Representative (AR) appearing for Revenue, reiterated the findings made by the learned Pr. ADG in upholding the original order. He further stated that the appellants had submitted the refund application on 22.03.2013 in respect of the amount paid under protest, even before the issue in dispute could be adjudicated and therefore, he claimed that the impugned order upholding the original order of rejection of refund claim as pre-mature is proper and justified. 5. Heard both sides and perused the records of the case. We have also perused the additional written submissions presented in the form of paper books for this case....
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....5F, 35FF to 35-O (both inclusive), 35Q, 35R, 36, 36A, 36B, 37A, 37B, 37C, 37D, 38A and 40." Central Excise Act, 1944 Claim for refund of duty and interest, if any, paid on such duty. "Section 11B. (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such appli....
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....ssioner, is required to examine and satisfy himself, whether the refund claimed by the applicant is refundable or not. Once the issue is decided with respect to the amount of refund, then the said authority is further required to determine, whether such refund is to be credited to the Consumer Welfare Fund or it is to be paid to the claimant, upon examination of the issue, whether the refundable amount relates to the specified grounds itemized under proviso to sub-section (2) of Section 11B ibid including the issue of 'unjust enrichment angle'. 6.6 From the records placed in the case file, it is not in dispute that the amount of CENVAT credit of Rs.86,70,43,899/- was paid by the appellants under protest pursuant to audit objection and the payment of the same was communicated to the department on 14.03.2022. However, SCN was issued in this case on 08.10.2022 after the payment under protest and a proposal was also made for appropriation of such amount paid by the appellants towards demand of CENVAT credit. The application for refund in the prescribed Form-R was received by the department on 22.03.2023 and the grounds for refund specifically stated that the appellants is of the bon....
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....at demands proposed in the SCN dated 08.10.2002 were dropped in its entirety by the Commissioner of Service Tax- IV, Mumbai vide Order-in-Original 16.01.2017. Thus, the matter with respect to the disputed issues had been finally decided in the Order dated 16.01.2017, and Revenue has nothing more to state as no appeal was filed against such order. In view of the above, we find that the issue with respect to demand of reversal of CENVAT credit against alleged exempted services had attained finality and there is no demand confirmed against such payment made by the appellants under protest. Therefore, we are of the considered view that the facts involved therein being germane to the issue of refund, these should have been dealt with by the first appellate authority in the impugned order, when the same were specifically brought to his attention during the personal hearing. On the other hand, the impugned order did not examine this aspect by specifically stating that the core issue of demand of CENVAT credit is legally sustained or not, is not being taken up for consideration by him in the impugned order. From the above it clearly transpires, that the impugned order has not followed the ....
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.... before taxes or duties were paid which is plainly an absurdity. It would appear that the two lower authorities chose to attach a status to the refund claim that is not contemplated in the statute. 7. Besides statutory impropriety and fallacious description, a consummation disconnect is also perceptible. The claim having been filed and taken on record, its return can be said to be complete only when its custody is transferred back to the claimant. It is moot whether an order can render it to be so without the willing participation of the claimant in a custodial transaction. That the claimant has been pursuing appellate remedies is a clear indication of lack of such willingness. The orders of the lower authorities would appear to be no whit more than printing on a piece of paper. Can the physical existence of a refund application with the Commissionerate be erased or wished away by an adjudication order? Is there a process contra to revenue recovery that entails the might of the State being resorted to for reposing the custody in the applicant? It would appear not. The 'bell, book and candle' routine does not trespass into the temporal! Tax administrators exercising statuto....
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....micals Ltd. (supra) have by following the various decisions of the High Courts and Tribunal have held that voluntary deposits made during the pendency of adjudication is pre-deposit of duty and unjust enrichment would not apply while dealing with refund of such duty. The relevant paragraph of the said order is extracted and given below: "12. The issue as to whether unjust enrichment has to be examined while considering a claim for refund of an amount deposited during investigation or proceedings arose before the Madras High Court in Commissioner of Central Excise, Coimbatore v. Pricol Ltd.2015 (320) E.L.T. 703 (Mad.) Investigations revealed that the assessee had cleared waste and scrap without payment of duty. Adjudication proceedings were initiated but during the pendency of these proceedings, the assessee deposited Rs. 1.55 Crores. A show cause notice dated 2 December, 1998 was, thereafter, issued to the asseesee. After adjudication, the demand was confirmed by Order dated 11 May, 2001 and the amount of Rs. 1.55 Crores deposited by the assessee was directed to be appropriated. The assessee filed an Appeal against the aforesaid Order before the Tribunal. The Appeal was al....
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....s not apply. The above said view has been reiterated by the High Court of Bombay in Suvidhe Ltd. v. Union of India (1996 (82) ELT 177 (Bom.)), and by the Gujarat High Court in Commissioner of Customs v. Mahalaxmi Exports (2010 (258) ELT 217 (Guj.)), which has been followed in various cases in Summerking Electricals (P.) Ltd. v. Cegat, New Delhi (1998 (102) ELT 522 (All.)), Parle International Ltd. v. Union of India (2001 (127) ELT 329 (Guj.)) and Commissioner of Central Excise, Chennai v. Calcutta Chemical Company Ltd. (2001 (133) ELT 278 (Mad.)) and the said view has also been maintained by the Supreme Court in Union of India v. Suvidhe Ltd. (1997 (94) ELT A159 (SC)). There are also very many judgments of various Courts, which have also reiterated the same principles that in case any amount is deposited during the pendency of adjudication proceedings or investigation, the said amount would be in the nature of deposit under protest and, therefore, the principles of unjust enrichment would not apply. In view of the catena of decisions, available on this issue, this Court answers the first substantial question of law against the Revenue and in favour of the assessee." (Empha....
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....5. This issue was also examined by the Tribunal in Commissioner of Customs, Bangalore v. Motorola India Pvt. Ltd. 2006 (206) E.L.T. 370 (Tri. - Bang.). The Tribunal upheld the view of the Commissioner (Appeals) that the power of unjust enrichment would not be applicable for refund of an amount deposited during investigation and the relevant paragraph is reproduced below : "10. It is clear that the Commissioner (A) dealt with two refund claims in respect of each of the appeal filed before him. The fact that the amounts were paid during investigation is not in dispute. The duty liability on the Respondents is settled consequent to Commissioner's order dated 6-10-2003 in respect of Appeal No. 44/05. But as regards Appeal No. 45/05, the Respondents filed the refund claim before the Asst. Commissioner as earlier as 9-11-2001 though the Commissioner passed his order on 27-2-2004. The point is that in respect of both the claims, the amounts were deposited during the course of investigation by the DRI. The Commissioner (A) has elaborately discussed the issues and come to the conclusion that the excess amount deposited after taking into account the duty liability determined by ....