Commissioner of Central Excise Vs. Apr Packaging Industries Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/41854
SubjectService Tax
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided OnFeb-17-2006
JudgeJ Balasundaram, Vice-, A T K.K.
AppellantCommissioner of Central Excise
RespondentApr Packaging Industries Ltd.
Excerpt:
1. the revenue seeks stay of operation of the order of the commissioner of central excise (appeals) who has sanctioned the claim for refund of service tax of rs. 18,49,683/- covering the period 16-11-1997 to 2-6-1998.2. none appears for the respondents; hence we heard the id. sdr and perused the records.3. we find that the commissioner (appeals) has entirely relied upon the tribunal's decision in the case of l.h. sugar factories ltd. to hold that the assessees are entitled to the refund. however, we see prima facie force in the contention of the id.sdr that the judgment of l.h. sugar factories ltd. would apply to a case where the department raises demand for recovery of service tax and will, prima facie, not cover the situation in the present case, where the service tax has voluntarily paid by the assessees but has sought refund. we, therefore, see merit in the prayer of the department for stay of operation of the impugned order. we accordingly allow the applications by granting the prayer for stay.
Judgment:
1. The Revenue seeks stay of operation of the order of the Commissioner of Central Excise (Appeals) who has sanctioned the claim for refund of service tax of Rs. 18,49,683/- covering the period 16-11-1997 to 2-6-1998.

2. None appears for the respondents; hence we heard the Id. SDR and perused the records.

3. We find that the Commissioner (Appeals) has entirely relied upon the Tribunal's decision in the case of L.H. Sugar Factories Ltd. to hold that the assessees are entitled to the refund. However, we see prima facie force in the contention of the Id.

SDR that the judgment of L.H. Sugar Factories Ltd. would apply to a case where the department raises demand for recovery of service tax and will, prima facie, not cover the situation in the present case, where the service tax has voluntarily paid by the assessees but has sought refund. We, therefore, see merit in the prayer of the department for stay of operation of the impugned order. We accordingly allow the applications by granting the prayer for stay.