The New Delhi Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), dismissed appeal on the ground that the rectification application was filed instead of appeal for alleged mistake in order passed by the Adjudicating Authority.
The appellant, National Fertilizers Limited was getting supply of gas used as fuel in its factory through pipeline set up by the Gas Authority of India Limited (GAIL). The rate for supply of gas was determined by the Petroleum and Natural Gas Regulatory Board.
The appellant filed 3 service tax appeals for refund claims. The appeal filed by the appellant before the Commissioner (Appeals) remanded the matter to the Adjudicating Authority for a fresh decision.
The Madhya Pradesh High Court allowed the appeal filed by the Department, in relation to one of the service tax appeals holding that the appellant had not produced any documentary proof to establish that it had not passed on the burden of tax to the customers in response to the show cause notice.
No appeal was filed by the Department before the Madhya Pradesh High Court against the rejection of the refund claims in relation to other two service tax appeals. Pursuant to the order of remand, the refund applications filed by the appellant were rejected by the Adjudicating Authority and Additional Commissioner.
The Additional Commissioner rejecting the two refund claims held that there was no mistake apparent from the record which needed to be rectified and, in fact, the arguments which were advanced could be raised by the appellant it filed an appeal before the Tribunal. Feeling aggrieved the appellant filed the present appeal.
A Coram consisting of Justice Dilip Gupta, President and PV Subba Rao, Technical Member observed that “It needs to be noted that the appellant had not filed any appeal to assail the order passed by the adjudicating authority and only applications for rectification of the alleged mistake in the orders were filed.”
“The Additional Commissioner could have taken a possible view that the judgment of the Madhya Pradesh High Court would govern the issue relating to refund and examined the two applications in the light of the observations made by the Madhya Pradesh High Court. Such a view could have been corrected in an appeal, but not by way of an application filed for rectification of an alleged mistake” the Tribunal noted.
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