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ST - Respondent paying ST under wrong assessee code - Issue is not of classification or refund which is of legal and/or recurring in nature - exclusion provided in litigation policy not applicable: CESTAT

 

By TIOL News Service

MUMBAI, MAY 29, 2018: THE Commissioner of Central GST, Pune has filed an application for Rectification of Mistake (ROM) in the Final Order no. A/91624/2017 dated 05/12/2017 passed by the CESTAT dismissing the Revenue appeal on the ground that the same is hit by the monetary policy guidelines prescribed by the Board.

It is the contention of the Revenue that the issue involved was of refund which was excluded from the litigation policy as per clause no. (c) of para 3 of the instruction F.No. 390/Misc./163/2010-JC dated 17 the August 2011 dated 17/08/2011 read with instruction dated 17/12/2015. Inasmuch as there is an error apparent on the face of record in dismissing the appeal on litigation policy.

The respondent assessee brought to the notice of the Bench the contents of F.No. 390/Misc./116/2017-JC dated 4 the April 2018 whereby clause (3) stands withdrawn.

The Bench, therefore, observed -

"4. …, I find that, firstly the issue of refund arises only due to the respondent paying service tax under a wrong assessee code. Therefore, the issue is of not recurring nature or legal issue relating to the refund or classification was involved, only in such cases the exclusion provided in clause (c) will be applicable. Therefore, this case does not fall under the clause (c) of para 3 of the instruction dated 17/08/2011. Moreover, Government of India further amended the instruction dated 17.08.2011 vide. F.No. 390/Misc./116/2017-JC dated 4 the April 2018 to cover all the cases wherein amount involved is less than Rs.10 lakhs."

Holding that ROM application is not maintainable, the same was dismissed.

Quick reference:

++ F.No. 390/Misc./163/2010-JC dated 17 the August 2011

3. Adverse judgments relating to the following should be contested irrespective of the amount involved:

a) Where the constitutional validity of the provisions of an Act or Rule is under challenge.

b) Where Notification/ Instruction/ Order or Circular has been held illegal or ultra vires

++ Instruction dated 17/12/2015

2. In para 3 of the instruction dated 17.8.11 a sub clause 'c' shall be added which shall read as "classification and refunds issues which are of legal and/or recurring nature".

++ F.No. 390/Misc./116/2017-JC dated 4 the April 2018

1. Deletion of sub clause 'c' of para 3 of the Instruction dated 17.08.2011, introduced vide Instruction dated 17.12.2015.:

(See 2018-TIOL-1647-CESTAT-MUM)


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