PAYMENT OF SERVICE TAX

CESTAT, MUMBAI BENCH

Central Oil Ltd.

v.

Commissioner of Central Excise, Raigad

M.V. RAVINDRAN, JUDICIAL MEMBER

ORDER NO. A/675/C-W/SMB/2007

IN APPEAL NO. ST/13/2007

APRIL 30, 2007

Section 68 of Finance Act, 1994 - Payment of service tax - Assessee paid service tax on total taxable value of service without claiming 75 abatement benefit available to it under Notification No. 32/2004 dated 3-12-2004 - Later claimed refund of excess service tax so paid, and produced certain certificate before adjudicating authority in support of that, but same was disallowed - On appeal Commissioner (Appeals) also disallowed claim of assessee on ground that assessee could not justify correctness and genuineness of said certificates and had availed credit of service tax of some other input services during relevant period - Whether assessee was entitled to refund of amount paid in excess, provided it was able to justify conditions of said notification were satisfied by assessee, and availment of credit on some other input service could not be ground for rejecting said claim - Held, yes - Whether, therefore, impugned order was to be set aside and matter was to be remanded to original authority for fresh consideration - Held, yes (Para 3)

FACTS

The assessee/appellant discharged the service tax liability on total of the taxable value without taking the abatement of 75 per cent of the amount of taxable value as envisaged in the Notification No. 32/2004 dated 3-12-2004, benefit of which was available to it. Later the assessee claimed refund, but the claim was disallowed. The Commissioner (Appeals) also disallowed the claim of the assessee.

On appeal:

HELD

The assessee had produced some certificate before the adjudicating authority and the adjudicating authority had considered the said certificate but had not given any findings on the said certificate. As against this, the Commissioner (Appeals) had come to the conclusion on the said certificate which could not be relied upon for claiming the refund on the ground that the assessee could not justify the correctness and genuineness of the said certificate. Further, it was seen that the denial of refund had arisen also on the ground that the assessee had availed the credit of service tax of some other input services during the relevant period. That could not be the ground for rejecting the refund claim of the assessee, therefore, it was entitled to refund of the amount paid in excess, provided, it was able to justify that the conditions of the Notification No. 32/2004 were satisfied by it. Further, availment of the credit on some other input services by the assessee could be the ground for rejecting the refund claim. (Para 3)

Since there was no finding on those issues, the impugned order was liable to be set aside and the matter remanded back to the original Authority to reconsider the mater afresh. (Para 4)