1. The present appeal is directed against the impugned order dated 06/05/2011 passed by the Commissioner of Central Excise (Appeals), Bangalore
whereby the learned Commissioner has rejected the appeal of the appellant as time-barred. 2. Briefly the facts of the present case are that the
appellant is a telecom service provider with the service tax for providing telephone/mobile services. The appellant had inadvertently paid an amount of
Rs.1,45,85,319/- towards service tax under the category of “Business Auxiliary Service†on the services provided to a foreign mobile service
provider who enabled the subscriber of the said foreign service provider to avail International in-bound roaming facility. The appellant had filed a
refund claim for the said amount of Rs.1,45,85,319/-. A show-cause notice was issued to the appellant as to why their refund claim should not be
rejected under (a) Circular No.90/1/2007-ST dt. 03/01/2007 as their services were delivered and consumed in India and (b) Section 11B of Central
Excise Act, 1994 made applicable to service tax refund matters vide Section 83 of the Finance Act, 1994. After due course of proceedings, the
adjudicating authority passed the impugned order rejecting their refund claim on the ground that the appellant have admitted that the department has
viewed the said services under „Telephone Services‟ and not under „Business Auxiliary Service‟, the deposited tax is considered to have been
deposited for the Telephone services provided by the appellant. The said services were taxable under Section 65(105)(b) of Finance Act, 1994 and
there did not exist any exemption notification, the tax payment was correct and question of refund does not arise. The adjudicating authority also held
that service to inbound roamers was delivered and consumed in India so it does not amount to export and the domestic telecom operators providing
roaming service to international inbound roamers are liable to pay tax on the amount received through the home network. Moreover the adjudicating
authority held that even if admissibility of refund is there, the amount of refund should go to Consumer Welfare Fund in terms of Section 11B read
with Section 12B of Central Excise Act, 1944 as made applicable to service tax under Section 83 of Finance Act, 1994 since the taxable value was
considered under Section 67(2) of the Finance Act, 1994 so it can be construed that the incidence of tax has been passed on to other person.
Aggrieved by the Order-in-Original, the appellant filed appeal before the Commissioner (Appeals) who rejected the same as time barred. Hence the
present appeal.
3.1. Learned counsel for the appellant submitted that the impugned order passed by the Commissioner (Appeals) rejecting the appeal as time barred is
not sustainable in law as the same has been passed without properly appreciating the facts and law. He further submitted that the appeal was filed
within time but the only mistake committed by the appellant was that they filed the copy of the appeal in the office of the Commissioner of Central
Excise and Service Tax. He also submitted that during the year 2007, the Tapal Section (filing section) was common to the office of the Commissioner
of Central Excise and Service Tax as well as the office of the learned Commissioner of Central Excise (Appeals). It is his further submission that it is
evident from the communications between the appellant and the office of the Commissioner of Service Tax that the learned Commissioner of Service
Tax has acknowledged the filing of the appeal before him on 19/12/2017 and hence it is not disputed fact that the appeal papers were received in the
office of the Commissioner of Service Tax and the same is available with them as recorded in the register as IC No.4437 at page No.254. He further
submitted that the concerned authority should have transferred the appeal to the office of the learned Commissioner (Appeals) once it came to their
knowledge that the appeal ought to have been filed before the learned Commissioner(Appeals). He also submitted that it is well settled legal position
as decided by various decisions that where the appeal has been filed before the wrong forum, then the officer concerned should transfer the file to the
right authority. For this submission, he has relied upon the following decisions:-
i. Academy of Maritime Education & Training Trust Vs. CST (Appeals-I), Chennai [2018(11) GSTL 261(Mad.)]
ii. Geltec Pvt. Ltd. Vs. CCE,C&ST, Bangalore-I [2018(364) ELT 671 (Tri. Bang.)]
iii. AT&T Communications Services India Pvt. Ltd. Vs. CC, Bangalore [2007(219) ELT 461 (Tri. Bang.)]
iv. Taher Ali Industries & Projects Pvt. Ltd. Vs. CCE [2008(230) ELT 134 (Tri. Bang.)]
v. Horticulture Development Foundation Vs. CST, Kolkata [2014-TIOL-1818-CESTAT-KOL]
vi. Maruti Udyog Limited Vs. CC [2009(244) ELT 66 (Tri. Ahmd.)]
3.2. He also submitted that the appeal filed on 19/12/2007 before the Service Tax commissionerate should be treated as having been filed within time
and therefore the same is not time-barred and the impugned order is liable to be set aside.
4. On the other hand, the learned AR submitted that the appeal has been filed on 11/03/2011 by delay of more than 3 years from the date of issue of
order and therefore it is beyond the condonable period as provided in Section 85(3) of the Finance Act, 1994. He also submitted that there was
negligence on the part of the appellant in submitting the appeal memorandum in the Service Tax commissionerate instead of office of the
Commissioner (Appeals) as provided in the preamble of the Order-in-Original.
5. After considering the submissions of both the parties and perusal of the material on record and the decisions relied upon by the appellant, we find
that admittedly, the appellant has filed the appeal on 19/12/2007 but the same was wrongly filed before the Commissioner of Service Tax which was
located in the same building. The factum of receipt of the appeal in the office of Commissioner of Service Tax is admitted in the correspondence
between the appellant and the Department. Further, we find that after filing the appeal, the appellant vide its letter dt. 01/12/2008 and subsequent
reminder dt. 12/12/2010 requested the Commissioner (Appeals) for grant of personal hearing. The appellant even filed RTI application to find out the
whereabout of the appeal and came to know that the appeal is lying with the Commissioner of Service Tax. Further we find that if the appeal was
filed wrongly before the Commissioner of Service Tax, then it was the duty of the CST to have sent the same to the Commissioner (Appeals) who
was located in the same building but the same was not done by the Department and therefore the time spent in pursuing the appeal before the wrong
forum is condonable in view of the decisions cited supra. Since the appeal was filed on 19/12/2007, which is deemed to be filed well within time and
hence the dismissal of the appeal on time bar is not sustainable and therefore we set aside the impugned order and remand the matter back to the
learned Commissioner (Appeals) with direction to decide the appeal on merits after complying with the principles of natural justice. Appeal is allowed
by way of remand.
(Operative portion of the Order was pronounced in Open Court on 19/01/2021)
