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2021 (10) TMI 1300 - AT - Service TaxRefund of service tax paid - erroneous payment of service tax on export of service under the category of Business Auxiliary Service for which it is claimed that this is an exempted from service tax - rejection on the ground of principles of unjust enrichment - absence of any challenge or assessment or self-assessment in appeal - HELD THAT - Considering that there are divergent views of this Tribunal in the case of Cadila Healthcare Limited 2021 (4) TMI 1157 - CESTAT AHMEDABAD and in the case of Karanja Terminal and Logistics Pvt.Ltd. 2021 (2) TMI 300 - CESTAT MUMBAI therefore it would be proper to refer the matter to the Larger Bench of this Tribunal to decide the following issue - Whether refund claim of service tax is maintainable in the absence of any challenge or assessment or self-assessment in appeal or not? The Registrar is directed to place the matter before the Hon ble President to constitute the Larger Bench for resolution of the above issue.
Issues Involved:
1. Maintainability of refund claim without challenging the assessment or self-assessment. 2. Applicability of the ITC Limited judgment to service tax refund matters. 3. Distinction between customs and service tax assessments. 4. Interpretation of relevant sections of the Finance Act, 1994, and the Customs Act, 1962. Detailed Analysis: 1. Maintainability of Refund Claim Without Challenging the Assessment or Self-Assessment: The appellant filed a refund claim for service tax erroneously paid on export services under the category of Business Auxiliary Service, which is exempt from service tax. The refund was initially rejected on the grounds of unjust enrichment and later on the basis that the service provided fell under Rule 2(f) of the Place of Provisions of Services Rules, 2012, categorizing it as an intermediary service. The appellant argued that the refund claim under section 11B of the Central Excise Act, 1944, was maintainable despite not challenging the assessment or self-assessment in appeal. 2. Applicability of the ITC Limited Judgment to Service Tax Refund Matters: The respondent contended that the refund claim was not maintainable without challenging the assessment or self-assessment, as held by the Supreme Court in ITC Limited vs. CCE, Kolkata-IV. The appellant countered that the ITC Limited judgment pertained to customs duty and not service tax, emphasizing that the assessment scheme under the Customs Act was amended to include self-assessment, which is not analogous to service tax assessments. 3. Distinction Between Customs and Service Tax Assessments: The Tribunal noted that in customs matters, self-assessment is verified and endorsed by a customs officer, making it an order of assessment appealable under section 128 of the Customs Act. Conversely, in service tax matters, no such order is passed by a departmental officer upon filing an ST-3 return, thus distinguishing it from customs assessments. The Tribunal referenced the Cadila Healthcare Limited case, where it was held that the ITC Limited judgment does not apply to service tax refunds due to the absence of an assessment order by a service tax officer. 4. Interpretation of Relevant Sections of the Finance Act, 1994, and the Customs Act, 1962: The Tribunal discussed section 85 of the Finance Act, 1994, which allows appeals to the Commissioner of Central Excise (Appeals) against decisions or orders by adjudicating authorities. The appellant argued that a taxpayer filing a return under section 70 of the Finance Act, 1994, does not act as an adjudicating authority, and thus, the requirement to challenge an assessment does not apply to service tax refunds. Conclusion: The Tribunal acknowledged divergent views on the issue, citing the Cadila Healthcare Limited case, which supported the appellant's position, and the Karanja Terminal and Logistics Pvt. Ltd. case, which supported the respondent's position. Given these conflicting judgments, the Tribunal decided to refer the matter to a Larger Bench to resolve whether a refund claim for service tax is maintainable without challenging the assessment or self-assessment in appeal. Order: The Registrar was directed to place the matter before the Hon’ble President to constitute a Larger Bench for resolution of the issue.
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