By TIOL News Service

HYDERABAD, JAN 16, 2019: TWO appeals have been filed by the assessee.

The appellant had preferred a refund claim which was partly rejected and partly allowed by the Asst. Commr. vide O-I-O dt. 14.10.2008. The appellant preferred an appeal before the Commissioner (Appeals) challenging the rejected portion of the refund. This appeal was decided by the Commissioner (Appeals) vide O-I-A dt. 30.03.2009. The Revenue did not file any appeal challenging the sanction of refund by the Asst. Commr. in the O-I-O. Meanwhile, the Commissioner reviewed the O-in-O passed by Asstt. Commr. and passed Order-in-Original (Revision) dt. 26.02.2010, confirming the demand of service tax along with interest to the extent sanctioned by the Asst. Commissioner.

Against this O-in-O(R), an appeal ST/2530/2010 has been filed before the CESTAT contending that in terms of Section 84 of the Finance Act, 1994, the Commissioner had no jurisdiction to pass an Order-in-Revision (impugned order) as the Order-in-Appeal was already passed by the Commissioner (Appeals) on the subject.

In another matter of refund claim filed under Notfn. 17/2009-ST, the Asstt. Commr. sanctioned part of the claim (by order dated 27.09.2010) and out of the sanctioned amount, an amount of Rs. 38,27,626/- was appropriated against the demand confirmed by the Commissioner vide Order-in-Revision No. 2/2010 dated 26.02.2010 (supra).

The Asst. Commr. had also rejected an amount of Rs. 7,55,098/- of the refund claimed on ground that -

(i) claims were filed beyond the statutory time limit of one year from the date of export order.

(ii) there is a discrepancy in the name of the Port in the invoice and the Shipping Bill.

Since this order was upheld by the Commissioner(A) [dated 27.06.2011], the assessee has filed an appeal ST/2599/2011 before the CESTAT on the aforesaid two grounds and also in the matter of appropriation ordered.

The AR justified the order of the lower authorities. Insofar as appropriation of the amount of Rs.38,27,626/- is concerned, the AR submits that on the day the Assistant Commissioner passed the order (on 27.09.2010) making the adjustment, the appellant had not submitted any evidence to show that appeal had been filed against the confirmed demand (26.02.2010) before CESTAT and hence the adjustment was done correctly. Reliance is also placed on paragraph 12 of the o-in-a dated 27.06.2011 and the Board Circular 788/21/2004-CX dated 25.05.2004. Incidentally, an appeal was filed before the CESTAT on 08.10.2010 and which is after the date of the order of the Asstt. Commr.

The Bench considered the submissions and relied upon the decision of the Rajasthan High Court in the case of Inani Carriers - 2008-TIOL-648-HC-RAJ-ST where it is held that once an Order-in-Appeal has been passed, the original order ceases to exist as it merges with the Order-in-Appeal and, therefore, no portion of that original order can be revised.

Accordingly, it is held that the Order-in-Revision No. 2/2010 is unsustainable and, therefore, set aside. The appeal ST/2530/2010 is allowed.

In the matter of the appeal No. ST/2599/2011, the Bench, therefore, observed that in view of the setting aside of the o-in-o(revision) dated 26.02.2010 the appropriation of the amount of Rs.38,27,626/- is incorrect and same is payable to the appellant.

Insofar as the amount of Rs. 3,60,097/- rejected on the ground that the claims are filed beyond one year from the date of the let export order, relying upon the apex court decision in Dilip Kumar & Company  -  2018-TIOL-302-SC-CUS-CB , it is held that the appellant is not entitled to the refund of this amount. So also, in the matter of discrepancy in the name of the port in the invoice and the shipping bill, the Bench opined that there was no reason to assume that those pertain to the export of the goods in the correspondence of the shipping bill. Rejection of the amount of Rs.3,01,656/- was held to be correct.

The appeals were disposed of accordingly.

(See 2019-TIOL-170-CESTAT-HYD)