2022 (2) TMI 59 - AT - Service Tax

Refund of Service Tax - ocean freight paid for import of goods - rejection of refund on the ground that the refund claim is not filed under Section 11B but under Section 142(3) of CGST Act - HELD THAT - In exactly identical situation Division Bench of this Tribunal in the case of COROMANDEL INTERNATIONAL LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE ST VADODARA 2021 (10) TMI 1289 - CESTAT AHMEDABAD and in the case of GARDEN SILK MILLS LTD. VERSUS GARDEN SILK MILLS LTD. 2022 (1) TMI 1169 - CESTAT AHMEDABAD has remanded the matter to the original adjudicating authority to decide the issue afresh in the light of the decision of Hon ble Gujarat High Court in the case of MESSRS SAL STEEL LTD. 1 OTHER (S) VERSUS UNION OF INDIA 2019 (9) TMI 1315 - GUJARAT HIGH COURT . Learned Authorised Representative pointed out that the matter should be kept pending in view of the reference to Larger Bench wherein the jurisdiction of CESTAT in deciding the issues relating to section 142(3) of CGST Act has been referred to the Larger Bench. In the present case the appellant has already filed refund claim prior to the decision of Hon ble Gujarat High Court. The lower authorities did not get an opportunity to consider the impact of the said decision of Hon ble Gujarat High Court while deciding the refund claim - it is considered judicious to remand the matter back to the Adjudicating Authority for deciding the issue after considering the decision of Hon ble Gujarat High Court. Appeal allowed by way of remand.

Summary

Issues:
- Denial of refund claim under Section 142(3) of CGST Act
- Jurisdiction of CESTAT in cases filed under Section 142(3) of CGST Act

Analysis:
1. The appeal was filed against the denial of a refund claim by M/s. Kabra Extrusion Technik Limited for service tax paid on reverse charge basis of ocean freight for import of goods. The appellant claimed refund under Section 142(3) of CGST Act, 2017 as a refund of admissible Cenvat credit. However, following a decision by the Hon'ble Gujarat High Court in the case of SAL Steel Limited, it was found that such service tax was not payable. This led to the matter being remanded by the Division Bench in similar cases to re-examine based on the Gujarat High Court's decision.

2. The Authorized Representative argued that the refund claim was not under Section 11B but under Section 142(3) of CGST Act, raising a question about the jurisdiction of CESTAT in dealing with such cases. The matter of jurisdiction in cases filed under Section 142(3) of CGST Act was referred to the Larger Bench for clarification.

3. The Tribunal noted that in identical situations, the Division Bench had remanded similar cases to the original adjudicating authority to reconsider in light of the Gujarat High Court's decision in the SAL Steel Limited case. Considering that the appellant had filed the refund claim before the High Court's decision, the lower authorities had not assessed the impact of that decision. Therefore, it was deemed appropriate to remand the matter back to the Adjudicating Authority for a fresh decision after taking into account the Gujarat High Court's judgment.

4. Consequently, the appeal was allowed by way of remand to the Adjudicating Authority for a fresh decision after considering the judgment of the Hon'ble Gujarat High Court. The Tribunal decided to keep the matter pending in light of the reference to the Larger Bench regarding the jurisdiction of CESTAT in cases related to Section 142(3) of the CGST Act.

(Dictated and pronounced in the open court)