Commissioner of C. Ex. Vs. Ballarpur Industries Ltd. - Court Judgment

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. 8,84,499/- and rs. 2,70,503/- covering the period 16-11-1997 to 2-6-1998.3. 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.dr 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 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. 8,84,499/- and Rs. 2,70,503/- covering the period 16-11-1997 to 2-6-1998.

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.

DR 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 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.