J.P. Morgan Services India Pvt. Ltd. vs Union of India

This Writ Petition under Article 226 of the Constitution of India seeks issuance of a writ of certiorari or a writ in the nature of certiorari calling for records pertaining to the order-in-original dated 24-2-2014 passed by the Respondent No. 3 and after scrutiny thereof, to quash and set aside the same. It is the case of the Petitioner that the business that it carries on is known to the Department. The Petitioner is a company and holder of Service Tax Registration for providing taxable services and particularly financial services referred to in paragraph 1 of the Writ Petition. It is the case of the Petitioner that the services rendered and in most cases do not attract any service tax. The Petitioner availed Cenvat credit of service tax paid on input services used in or in relation to provision of taxable output services. Since the services rendered by the Petitioner qualify as export, they are not liable to service tax. The Cenvat credit availed by the Petitioner remains unutilized. The law provides for refund of such unutilized Cenvat credit on account of export of output services. That is how the Petitioner claimed refund. The refund claim has been rejected by the Respondent No. 3. It is claimed that similar exercise was carried out by the Respondent No. 3 and this Court in its writ jurisdiction was pleased to quash and set aside the order and direct reconsideration of the refund claim.

The Respondent No, 3 has rejected the entire refund application and in relation to the refund claim for the period April, 2012 to June, 2012 and July, 2012 to September, 2012. Against the said rejection of refund claim, the Writ Petition was filed in this Court being Writ Petition No. 2612/2014. Annexure B to the Writ Petition is a copy of the order passed on that Writ Petition on 21-3-2014 whereunder the Competent Authority was directed to scrutinize and verify the refund claim of the Petitioner afresh after granting the Petitioner an opportunity of personal hearing.

The present Writ Petition pertains to an identical refund claim, but for a distinct period. Therefore, it is prayed that the refund claim could not have been rejected in the manner done by the Respondent No. 3. The order is clearly vitiated in law. The Respondent No. 3 is bent on passing similar orders although he was aware that the orders passed by him earlier and taking such view were quashed and set aside by this Court.

We have perused the Writ Petition with the assistance of Mr. Shah and Mr. Kantharia. We do not express any opinion on merits of the refund claim. However, we find that the Respondent No. 3 has rejected the claim for refund and which is for the period October, 2012 to December, 2012 adopting identical reasonings. In fact what we have noted was that despite this Court''s order directing the Respondent No. 3 to consider the refund applications in accordance with the law laid down by this Court, the refund applications have been considered not taking into account individual facts and circumstances, but by applying some general rule. In fact the findings recorded at page 39 and which are part of the impugned order would indicate that there are some general observations and conclusions recorded. They are not making reference to a particular refund claim and which was before the Respondent No. 3. In these circumstances we are of the opinion that the impugned order cannot be sustained.

We, therefore, proceed to quash and set aside the impugned order dated 24-2-2014 and direct the Competent Authority, namely, Deputy Commissioner of Service Tax to consider the application/refund claim preferred by the Petitioner afresh on merits and in accordance with law. He shall consider the same and pass a fresh order within a period of four weeks from the date of receipt of a copy of this order. The Writ Petition is, accordingly, disposed of. No costs.