Service Tax - Applicability of limitation under Section 11B when service was not taxable. Single judge Order in KVR Constructions stayed
IN KVR CONSTRUCTIONS Vs COMMISSIONER OF CENTRAL EXCISE, BANGALORE - , a single judge of the Karnataka High Court held - Amount paid due to misunderstanding of law, when no tax was payable – limitation under Section 11B of Central Excise Act not applicable: Section 11B provides for making a claim to refund duty. Admittedly, the sums deposited by the petitioner is held to be a deposit and not as a duty, therefore, there was no necessity for the petitioner to have made a claim invoking Section 11B of the Act for refund.
The Single Judge had ordered refund Rs. 1,23,96,948/- to the petitioner forthwith, in any event within a period of two weeks from the date of the order.
We had carried this case on 22.01.2010.
On the same day we got a mail from the Senior Central Government Standing Counsel for Indirect Taxes, High Court of Karnataka, Bangalore.
Please be informed that as against the Order passed in the Writ petition bearing No 6773/2009 an appeal has been filed in Writ Appeal No. 2992-93/2009, in which the Division Bench comprising of Justice Shylendra Kumar and Justice Aravind Kumar was pleased to stay the operation of the Order of the learned Single Judge vide order dated 24th of August, 2009. The appeal has been posted for final hearing and not attained finality. The same may kindly be published for the benefit of the viewers.
We asked him for a copy of the order. He promptly sent it and said, “Please be kind enough to publish the same for the information of the public”
Thank you Sir! Your keen interest in ensuring that judgements are made known to the Public is laudable.
There is a feeling among Government officials that publications usually don't carry orders favourable to Revenue. Though this is not a fact as very few lawyers would like to win cases by hiding judicial decisions, we had contacted several Assistant Solicitors General in High Courts, CIT(DR)s in ITAT and DRs in CESTAT and Commissioners in the field and requested them to send us orders favourable to Revenue. And the response has been anything but encouraging. In fact there is an SDR in CESTAT who meticulously collects all orders favourable to Revenue and uploads them in his site in almost unreadable pdf form. We offered to carry all their cases and even offered free access to other DRs, but bureaucrase prevents him from giving us those cases.
A CIT(DR) in ITAT was mighty excited when we offered to carry all important cases, he has won, but in two years he gave us one order! An ASG in a High Court who rarely won a case promised to give us all the orders – in four years, he gave us one!, not that he had not won more cases! We only asked him to give us the case numbers.
In such a situation, we are simply bowled over by the interest shown by the Senior Central Government Standing Counsel in Bangalore, in bringing the orders of the Court into the public domain. Court Orders need to be made public, whether they are in favour of the Revenue or the assessee and TIOL considers it a duty and will spare no effort in bringing you all the important decisions.