National Fertilizers Limited Vs Commissioner CGST & Service Tax (CESTAT Delhi)
It is not possible to accept the contentions advanced by the learned counsel for the appellant. It is not in dispute that the issues that arose in all the three appeals were identical. It is true that the Department had filed one appeal only before the Madhya Pradesh High Court in connection with the refund claim of Rs. 1,95,37,953/- in Service Tax Appeal No. 843 of 2012 and no appeal was filed in relation to the refund claim of Rs. 25,18,316/- and Rs. 24,32,609/- which were the subject matter of Service Tax Appeal No. 845 of 2012, and Service Tax Appeal No. 844 of 2012 presumably for the reason that the amount involved was below the monetary limit fixed by the Government for filing appeal. However, what needs to be noticed is that the Tribunal had passed a common order and it is this order which was in appeal before the Madhya Pradesh High Court. The findings of the Tribunal have been reversed and the order passed by the adjudicating authority has been upheld. It cannot, therefore, be urged by the learned counsel for the appellant that the Additional Commissioner committed an illegality in rejecting the refund applications filed for refund of Rs. 25,18,316/- and Rs. 24,32,609/-. 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 two appeals were, therefore, rejected by the Commissioner (Appeals).
FULL TEXT OF THE CESTAT DELHI ORDER
Service Tax Appeal No. 50802 of 2021 has been filed by M/s National Fertilizers Limited1 to assail the order dated May 03, 2021 passed by the Commissioner (Appeals), by which the order dated July 27, 2020 passed by the Additional Commissioner rejecting the application filed by the appellant for rectification of mistake in the earlier order dated March 02, 2020 passed by the Additional Commissioner has been upheld, and the appeal has been dismissed. The amount of refund involved in this appeal is Rs. 25,18,316/-.
2. Service Tax Appeal No. 50803 of 2021 has also been filed by the appellant to assail the order dated May 03, 2021 passed by the Commissioner (Appeals), by which the order dated July 27, 2020 passed by the Additional Commissioner rejecting the application filed by the appellant for rectification of mistake in the earlier order dated March 02, 2020 passed by the Additional Commissioner has been upheld, and the appeal has been dismissed. The amount of refund involved in this appeal is Rs. 24,32,609/-.
3. It transpires from the record that the appellant was getting supply of gas used as fuel in its factory through pipeline set up by the Gas Authority of India Limited2. As supply of gas through pipeline is a taxable service under the provisions of the Finance Act, 19943, GAIL charged service tax. The rate for supply of gas was determined by the Petroleum and Natural Gas Regulatory Board4. Thus, GAIL charged provisional rates subject to finalization by the Board. The rates were finally revised downwards retrospectively by the Board with a direction that the rates already charged shall be mutually adjusted. GAIL issued credit notes for the basic rates only and for the higher tax collected, it directed the appellant to file refund claims. The appellant, accordingly, filed three refund claims, which are as follows :
