Separate appeal required to be filed for each order even if the orders appealed pertain to similar issue.

PJ/Case law/2013-14/1921

Case:-COMMISSIONER OF C. EX., DAMAN VERSUS ASIAN PLASTOWARES PVT. LTD.

Citation:-2013(31) S.T.R. 597 (Tri.- Ahmd.)

Issue:-Separate appeal required to be filed for each order even if the orders appealed pertain to similar issue.

Brief Facts:-The issue involved is eligibility of respondent for refund of Service Tax paid on GTA service availed and utilized for export of the goods under Notification No. 41/2007-S.T. The original adjudicating authority had passed two orders. In the first Order No. 8/NDMN/AC/9-10/R(ST), dated 24-7-2009, a refund of Rs. 24,085/- was sanctioned and in the second Order No. 9 /NDMN/AC/9-10R(ST), dated 24-7-2009, refund of Rs. 23,635/- was sanctioned. Revenue filed an appeal against sanction of refunds on the ground that the invoice issued by service provider did not contain registration number of the service provider. Further, the Assistant Commissioner, while sanctioning refund, had not verified whether the Service Tax has been paid or not. The Commissioner (Appeals), while considering the appeal, observed that the department had filed only one appeal against two orders passed by original adjudicating authority and therefore decided to consider the appeal as having been filed against Order No. 8/NOMN/ AC/09-10/R(ST), dated 24-7-2009 only and rejected the appeal. Revenue is in appeal against the decision of Commissioner (Appeals) rejecting the appeal.

Appellant Contentions:-The Department reiterated the grounds of appeal as contained in the appeal memorandum of appeal. The two refund sanction orders were passed by same Assistant Commissioner and issue involved was same and therefore one appeal was sufficient and therefore the order of Commissioner (Appeals) which considered the appeal as filed against one order is not proper. Secondly, the fact remains that the Assistant Commissioner has not recorded clear finding as to payment of Service Tax -by the claimant of the refund.

Respondent Contentions:- The respondents have submitted that the amount is only Rs. 27,085/- which is less than Rs. 50,000/- and therefore the appeal may be rejected. Further, they have also restated that Commissioner (Appeals)'s order was in accordance with law and needs no interference. Respondents also took objection to the proforma used for filing appeal.

Reasoning of Judgment:-We have considered the submissions made by both sides. As regards format of appeal, we find that this Tribunal had decided in the case of Krishna Export v. CCE, New Delhi -2011 (266) E.L.T. 374 (Tri.-Del.), that format meant for 'Excise appeal used in appeal involving Customs duty is a technical and rectifiable mistake and on this ground, the appeal cannot be dismissed and therefore the appeal cannot be rejected on the ground as claimed by the respondent. As regards correctness of one appeal having been filed in respect of two orders, Tribunal was not able to find any justification for this. Tribunal find agreed with ld. Commissioner (Appeals), who has reproduced Section 85 of Finance Act, 1994, which provides that any person aggrieved by any decision or order passed by the adjudicating authority subordinate to Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals). This would mean that in respect of each order, a separate appeal is required to be filed. In this case, it was found that two separate numbers have been given to both orders, and it is not even a common order covering two refund claims, but separate orders have been issued. Under these circumstances, Tribunal found no justification for filing a single appeal. As regards verification of payment of Service Tax, the Commissioner (Appeals) has considered this issue and has observed that the department has not been able to show how the finding of Assistant Commissioner that the appellant is eligible for refund of Service Tax is incorrect. Even now, it was found that there is no submission/statement that the Service Tax has not been paid by the claimant of refund. If Revenue wanted to appeal on this ground, proper course was to verify written submissions whether the Service Tax paid by the service provider and the receiver and then file the appeal. The ground that there is no specific finding of the original adjudicating authority that he has verified the payment of Service Tax, cannot be accepted. Once the Assistant Commissioner while sanctioning refund, makes an observation that he has found that all the documents are in order and records a finding that refund is payable, the only conclusion would be that he has to verified whatever is required to be verified and any contrary claim is made, it is for the person who makes such contradictory claim to prove that the original adjudicating authority had failed in his duty. Therefore, it was found that there is no merit on this ground also. Further, as regards documents not containing details, obviously when the service recipient pays the tax, it is quite possible that the service provider may not be registered. Obviously, he cannot provide registration number. Once it is clear that the Service Tax is paid by the recipient, he was eligible for refund and on technical ground without showing that payment was not made, refund cannot be rejected.
In view of the above discussion, no merits were found in the appeal filed by the Revenue and accordingly the same was rejected.

Decision:-Appeal is rejected.

Comment:-The essence of this case is that when separate orders for sanctioning the refund claim have been passed by the adjudicating authority, single appeal filed for two orders even if they pertain to same issue is not sustainable. Moreover, the ground that the adjudicating authority has not verified whether service tax has been paid of which the refund is being claimed is totally absurd as the original adjudicating authority is deemed to have exercise sufficient due diligence while processing the refund claims and if anything is objectionable to the revenue department, the same is required to be substantiated with proper evidences.

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PJ/Case law/2013-14/1921

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