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2013 (11) TMI 801 - AT - Service TaxRecovery of Refund already granted - earlier service tax paid on GTA service without claiming 75% exemption - later they filed refund claim - Asstt. Commissioner allowed the full refund claim - Commissioner (Appeals) revered the order of Asstt. Commissioner and disallowed the refund claim stating that refund claim is time barred - Held that - Commissioner (Appeals) findings with regard to unjust enrichment as in respect of inward freight where the Appellant have paid the Service tax on the GTA Service received as service recipient is not correct, as in such cases there is no question of recovery, the service tax paid from their customers. Limitation period under section 11B would be applicable, as there is nothing in Apex Court s judgment in Mafatlal Industries Ltd. Vs Union of India 1996 (12) TMI 50 - SUPREME COURT OF INDIA from which it can be inferred that for refund of the excess duty paid by an assessee, the limitation period under section 11B would not apply. In this regard the Appellant has cited the judgment of Tribunal in the case of Singla Pipes Pvt. Ltd. Vs. Commissioner of Central Excise, Chandigarh, reported in 2006 (6) TMI 413 - CESTAT, NEW DELHI . However, ratio of this judgment is not applicable to the fact of this case - Prima facie case not in favour of assessee - Stay granted partly.
Issues:
1. Refund claim for service tax paid on GTA service. 2. Applicability of exemption Notification No.32/04-ST. 3. Time limitation under section 11B for refund claims. 4. Principle of unjust enrichment in service tax matters. 5. Stay application for pre-deposit of service tax demand and interest. Refund Claim for Service Tax Paid on GTA Service: The appellant paid service tax on goods transport services without availing of the exemption Notification No.32/04-ST. They later filed a refund claim for an amount of Rs. 62,635, which was sanctioned by the Assistant Commissioner. However, the Commissioner (Appeals) reversed this decision, citing the refund claim as time-barred and invoking the principle of unjust enrichment. The appellant argued that they, as recipients of the GTA service, did not recover the service tax from their customers, and hence, the unjust enrichment principle should not apply. Applicability of Exemption Notification No.32/04-ST: The appellant paid service tax on the gross amount of transport charges without utilizing the exemption Notification No.32/04-ST. This led to the refund claim filed by the appellant, seeking a refund of the excess amount paid. The issue of whether the appellant was entitled to avail of the exemption and the impact of not doing so on the refund claim were crucial aspects of the case. Time Limitation under Section 11B for Refund Claims: The Commissioner (Appeals) held the refund claim as time-barred under section 11B, which imposes a limitation period for claiming refunds. The appellant argued that the limitation period should not apply based on the judgment of the Apex Court in Mafatlal Industries Ltd. vs. Union of India. However, the tribunal found that the limitation period under section 11B would be applicable to the case. Principle of Unjust Enrichment in Service Tax Matters: The Commissioner (Appeals) invoked the principle of unjust enrichment, stating that the service tax paid had been recovered by the appellant from their customers. The appellant contested this, emphasizing that they were the recipients of the GTA service and had not passed on the tax burden to their customers. The tribunal agreed with the appellant, stating that in cases where the appellant paid service tax as service recipients, there was no question of recovery from customers. Stay Application for Pre-Deposit of Service Tax Demand and Interest: The appellant filed a stay application requesting a waiver of the pre-deposit of service tax demand and interest pending the appeal's disposal. The tribunal directed the appellant to deposit Rs. 25,000 within four weeks, after which the pre-deposit requirement for the balance amount of service tax demand and interest would be waived, and the recovery stayed until the appeal's finalization. The tribunal found this to be a case where total waiver was not warranted.
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