Allowed

M/S Choubay and Company (Agencies) v. the Commissioner Gst, Customs and Central Excise and Another

Allahabad HC17 Mar 2021CEXA/2/2021

Case brief

AI extract

What is this about?

The Supreme Court allowed the appeal, setting aside orders of the Customs Excise and Service Tax Appellate Tribunal and Commissioner (Appeals). It observed that these authorities had overlooked the issue of whether the Mega Exemption Notification applied. The refund claim's limitation bar depends on this exemption. The matter was remanded to the Commissioner (Appeals) for a fresh decision.

What did the court decide?

The appeal was allowed, orders of the Commissioner (Appeals) and the Tribunal were set aside, and the matter was remanded to the Commissioner (Appeals) for fresh decision.

M/S Choubay and Company (Agencies) Vs the… — Service and Employment | Allahabad HC (2021)

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Court No. - 39

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Case :- CENTRAL EXCISE APPEAL No. - 2 of 2021 Appellant :- M/S Choubay And Company (Agencies) Respondent :- The Commissioner Gst, Customs And Central Excise And Another Counsel for Appellant :- Pooja Talwar Counsel for Respondent :- Ashok Singh

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Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Deepak Verma,J.

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Heard learned counsel for the parties and perused the record.

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The present appeal is directed against an order dated 20.02.2020 passed by the Customs, Excise and Service Tax Appellate Tribunal on the ground that the Tribunal did not advert itself to the issue with regard to applicability of Entries No.12(a) and 12(c) of the Mega Exemption Notification No.25/2012-ST dated 20.06.2012. The following question of law has been framed after hearing the arguments of counsels for the parties:

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"Whether the Customs, Excise and Service Appellate Tribunal had erred in ignoring the claim of the appellant regarding applicability of Entries No.12(a) and 12(c) of the Mega Exemption Notification No.25/2012-ST dated 20.06.2012, while rejecting the refund claim on the ground of limitation under Section 11B of the Central Excise Act, 1944. ?"

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On the said issue, learned counsel for the appellant contends that the refund application dated 23.09.2016 claiming refund of amount of Rs.8,04,232/- was filed asserting that the said sum was erroneously deposited as service tax on certain contract which were exempted from service tax by virtue of Mega Exemption Notification No.25/2012-ST dated 20.06.2012 for the period September, 2012 to August, 2014.

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It is contended that the appellant had submitted necessary documents to claim exemption, which was illegally denied by the Assistant Commissioner, CGST & CX, Division-II, Kanpur.

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In appeal before the Commissioner (Appeals), CGST & Central Excise Appeal Commissionrate, Allahabad, the ground of refund seeking exemption under the Mega Exemption Scheme, as aforesaid, was pressed. The Commissioner (Appeals), however, had simply ignored the said plea while rejecting the refund claim being time barred i.e. having been filed beyond time limit specified under Section 11B of the Central Excise Act. In appeal the Custom Excise and Service Appellate Tribunal, had conveniently by-passed the said issue. The contention of the learned counsel for the appellant is that, in case, on the material produced by the appellant, it is found

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entitled for benefit of Mega Exemption Scheme, the limitation prescribed in Section 11-B of the Central Excise Act, 1944 would not be attracted.

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Learned counsel for the revenue, however, defended the orders impugned saying that the issue being raised herein cannot be entertained within the limited scope of appeal under the Central Excise Act, 1944.

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Considered the submissions of learned counsel for the parties and perused the record. A perusal of the order of the Commissioner (Appeals) shows that the grounds of challenge in appeal taken by the appellant to the order of rejection of refund claim had been noticed. Para 2.3 of the order of Commissioner (Appeals) is relevant to be extracted hereunder:

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2.3. Aggrieved with the impugned Order, the appellant have filed the appeal, mainly, on the grounds that (i) their refund claim was not time barred, as they had deposited Service Tax on activities which were exempted under the Mega Exemption and as such, the time limitation specified under Section 11B of the Central Excise Act, 1944, was not applicable. In fact, the amount which they had paid, was not Service Tax but was in the nature of deposit. In this regard, they have placed reliance on a few judicial pronouncements and (ii) rejection of refund claim on the ground that they had not provided documentary evidences to show that the services provided by them, were exempt under the Mega Exemption, was totally unjustified, as they had submitted the details of various works on which they had claimed exemption alongwith copies of the work orders.

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However, while dealing with the appeal, the second ground of challenge noted in paragraph 2.3, as extracted above, had not been adverted to. This issue has also not been adjudicated by the Custom Excise and Service Appellate Tribunal.

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There is no adjudication on the issue that, in case, the exemption sought by the appellant under the Mega Exemption Scheme is allowed, the limitation for refund claim under Section 11B of the Act would not come into play.

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On the above limited issue to examine the claim of the appellant seeking for benefit of the Mega Exemption Scheme, the matter is liable to be relegated to the Commissioner (Appeals), as the validity of the finding on the said issue in the order of rejection dated 13.3.2019 has to be examined by him.

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While setting aside the order dated 19.06.2019 passed by Commissioner (Appeals) as also the order dated 20.02.2020

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passed by the Customs, Excise and Service Tax Appellate Tribunal, the appeal is hereby allowed. The matter is relegated to the Commissioner (Appeals) for fresh decision in accordance with law.

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Order Date :- 17.3.2021/SKD

M/S Choubay and Company (Agencies) v. the Commissioner Gst, Customs and Central Excise and Another

Case brief

What is this about?

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M/S Choubay and Company (Agencies) v. the Commissioner Gst, Customs and Central Excise and Another

Case brief

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What did the court decide?

What the court decided

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