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2011 (3) TMI 191 - AT - Service TaxRefund - time-barred - Survey and exploration of mineral - The benefit of the Export of Services Rules, 2005 was also claimed - the appellate authority also held that ONGC had not been able to prove satisfactorily that the service in question was received in non-designated areas of Continental Shelf and Exclusive Economic Zone and beyond the territorial waters of India - the limited purpose of producing these documents is to enlarge and clarify certain small maps appended to the contracts - In the absence of evidence of reimbursement of the tax amount by ONGC to M/s. CGG Marine, it is submitted that the claim filed by ONGC is liable to be rejected - the adjudicating authority just rejected those grounds and held that service tax was leviable and correctly levied on the amount paid by ONGC to M/s. CGG Marine for the service provided by the latter As regards unjust enrichment - the burden of service tax had not been passed on to any other person - It is for the appellant to establish that the aforesaid amount was, in fact, reimbursed by them to M/s. CGG Marine, which is a pre-requisite for the Asstt. Commissioner to take up ONGC s refund claim for consideration - Decided in the favour of the assessee by way of remand
Issues Involved:
1. Territorial jurisdiction for service tax levy. 2. Reimbursement and unjust enrichment. 3. Limitation period for refund claims. 4. Admissibility of refund claim without challenging the assessment. Issue-wise Detailed Analysis: 1. Territorial Jurisdiction for Service Tax Levy: The primary contention was whether the service provided by M/s. CGG Marine to ONGC fell within the designated areas of the Continental Shelf and Exclusive Economic Zone of India, as per Notification No. 1/02-ST dated 1-3-2002. ONGC argued that the seismic survey was conducted beyond Indian territorial waters, thus not subject to service tax under the Finance Act, 1994. However, the Asstt. Commissioner and the appellate authority held that the service was provided within designated areas, making it taxable. The Tribunal noted that the adjudicating authority failed to consider the fundamental statutory provisions and facts, such as the location of the service provider and recipient, and the delivery of the 3D tape containing seismic data in India. The Tribunal emphasized that the adjudicating authority should have determined the leviability of service tax based on first principles and the charging provisions of the Finance Act, 1994. 2. Reimbursement and Unjust Enrichment: ONGC claimed that the service tax paid by M/s. CGG Marine was reimbursed to them, thus entitling ONGC to a refund. The Asstt. Commissioner rejected this claim, citing a lack of documentary evidence to prove that the tax burden was not passed on to any other person. The Tribunal observed that ONGC did not furnish any documents to show that the burden of service tax had not been passed on, justifying the rejection of the refund claim on the grounds of unjust enrichment. The Tribunal also noted the need to verify whether the service tax amount was reimbursed by ONGC to M/s. CGG Marine, which is crucial for considering ONGC's refund claim. 3. Limitation Period for Refund Claims: The refund claim filed by ONGC on 6-8-2007 was contested as time-barred since the service tax was paid in March and May 2006. The Tribunal highlighted that the Asstt. Commissioner did not examine whether the refund claim was time-barred, which is a mandatory requirement under section 11B of the Central Excise Act. The Tribunal also noted that the protest registered by the service provider cannot extend to the service recipient, referencing the Supreme Court's judgment in CCE v. Allied Photographics India Ltd. 4. Admissibility of Refund Claim Without Challenging the Assessment: The Tribunal addressed the argument that ONGC's refund claim was not maintainable without challenging the relevant assessments, citing cases like Priya Blue Industries Ltd. v. Commissioner of Customs and Commissioner of Customs v. Hotelline CPT Ltd. The Tribunal emphasized that the adjudicating authority should have considered the facts and statutory provisions to determine the leviability of service tax before addressing the refund claim. Conclusion: The Tribunal set aside the orders of the lower authorities and remanded the case to the Asstt. Commissioner for fresh adjudication of the refund claim. The Asstt. Commissioner was directed to consider the relevant observations, statutory provisions, and documentary evidence, and to dispose of the matter within six months from the receipt of the Tribunal's order.
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