2024 (8) TMI 476 - AT - Service Tax

Refund of service tax paid on ocean freight - appellant s refund is hit by Rule 9 (1)(b) or (bb) of Cenvat Credit Rules, 2004 or not - suppression of fact or malafide intention alleged/established against the appellants or not - HELD THAT - Firstly there is no demand notice in respect of Service tax on ocean freight which was paid by the appellants on their own and also there is no adjudication as regard the suppression fact, therefore, in absence of any charge by way of show cause notice or adjudication thereof, the allegation of suppression of fact only to invoke Rule 9 (1) (b) or (bb) of Cenvat Credit Rules, 2004 is on assumption and presumption which cannot be accepted. Moreover, the payment of service tax is not towards the non-payment by reason of suppression of fact. In the present case the service tax was paid Suo-moto for which no offence was made out by the department. Therefore, in this fact, no suppression of fact is involved. Consequently, penal provision under Rule 9 (1) (b) or (bb) shall not apply. It is found that except the legal issue there is no discussion about the fact, documents and verification thereof, hence the matter needs to be remanded for this limited purpose for processing the refund claim of the appellant - appeal allowed by way of remand.

Summary

The Appellate Tribunal CESTAT Ahmedabad ruled that the appellant is entitled to a refund of service tax paid on ocean freight. The Learned Commissioner's decision was overturned as there was no suppression of facts or malafide intention by the appellant. The case is remanded for further verification of documents for processing the refund claim. The appeal is allowed, and the impugned order is set aside.