General Commodities Pvt. Ltd. v. Commissioner of Service Tax, Bangalore
2011-01-20
H.G.RAMESH
body2011
DigiLaw.ai
ORDER Huluvadi G. Ramesh, J.—The petitioner is seeking for a writ of certiorari to quash the show cause notice dated 9-3-2010 at Annexure-G and to issue a writ of mandamus directing the 1st and 2nd respondents to implement the Final Order dated 6-11-2009, 2010 (18) S.T.R. 460 (T) and sanction the entire refund amount of Rs. 8,09,534/- along with interest and, for such other relief. 2. Heard. 3. According to the petitioner, he has paid excess service tax on the gross freight charges without claiming any abatement of 75% from the gross amount as per Notification No. 1/2006-S.T., dated 1-3-2006, for the period April 2006 to September 2006 therefore, he has filed an application for refund of the same. The said application was rejected by the 2nd respondent authority. Being aggrieved, the petitioner preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal (for short 'the CESTAT') and the same was allowed. However, the Service Tax Department has issued one more show cause notice against the order of the Tribunal proposing to reject the refund claimed by the petitioner. Hence, the petitioner was constrained to file this petition seeking to quash the second sow cause notice and direct the Service Tax Department to refund the excess amount paid with interest. 4. It appears, the Assistant Commissioner of Service Tax has issued second show cause notice dated 9-3-2010, proposing to reject the part of the claim for refund of excess tax on the ground that the Tribunal's order covers only the point of 'unjust enrichment' and does not cover the point of rejection of Rs. 4,00,754/- though the Tribunal has allowed the appeal of the petitioner. The Assistant Commissioner of Service Tax, without looking into the very order of the Tribunal has issued second notice at Annexure-G despite a clear order has been passed by the Tribunal. 5. The observations made in the show cause notice at Annexure-G that the Tribunal has considered only on the point of 'unjust enrichment' and does not cover the point of rejection, does not hold any water in view of the fact that the entire matter has been discussed and final order has been rendered. Therefore, the impugned order at Annexure-G is quashed with a direction to the Assistant Commissioner of Service Tax to refund the excess service tax with interest as claimed by the petitioner. 6.
Therefore, the impugned order at Annexure-G is quashed with a direction to the Assistant Commissioner of Service Tax to refund the excess service tax with interest as claimed by the petitioner. 6. With the above observations, the writ petition is allowed.