BHARTI HEXACOM INDIA LTD. Vs. CCE

JUDGEMENT

(1.) THE applicant filed this application for waiver of pre -deposit of Service Tax of Rs. 2,79,675/ -.

(2.) THE applicant deposited Service Tax erroneously in respect of Port Charges. Subsequently, they filed refund claim on the ground that in terms of Board's Circular No. 46/09/2002 -ST dated 08.08.2002 and 16.08.2002, no Service Tax was leviable in respect of Port Charges. The Asstt. Commissioner of Central Excise sanctioned the refund claim following the order of the Tribunal in the applicant's own case vide order No. 08/2003 -NB -A dated 08.07.2003. Thereafter, a Show Cause Notice was issued to the applicant calling upon them to show cause as to why the refund claim of Rs. 2,79,675/ - sanctioned and paid by the Asstt. Commissioner of Central Excise should not be treated as erroneously granted and the same should not be recovered from them under Section 73 of the Finance Act, 1994. In the impugned order, the Commissioner of Central Excise rejected the refund claim sanctioned by the Asstt. Commissioner on the ground that the Tribunal's order followed by the Asstt. Commissioner is still subject matter of judicial review and has not attained finality.

(3.) AFTER hearing of the both sides, on perusal of records, I find that the Tribunal in the case of Commissioner of Central Excise, Chandigarh v. Kakkar Complex Steels (P) Ltd. 2001 (135) ELT 200 (T -Del.) held that mere pendency of a referred issue before High Court not affects the finality and precedent value of Tribunal's order. As such, the applicant has made out a, prima facie, case for waiver of recovery of the total amount of Service Tax till the disposal of the appeal.