2012 (4) TMI 219 - AT - Service Tax

Refund Claim - Appellants are engaged in the manufacture of carbon steel/mild steel spirally welded pipes and also - manufacturing polyethylene coating on the ERW steel pipes sent by customers assessee discharged the service tax liability on polyethylene coating on the ERW steel under the category of business auxiliary services assessee claimed refund on service tax on ground that service tax liability is to be discharged on consideration received for the services provided and not on value by taking into account the value of the bare pipe sent by them to the customers - revenue stated that assessee cannot argue on one hand that they would be eligible for credit in respect of pipes as inputs and on the other hand for payment of service tax value should not be taken into account and they are eligible for refund Held that - refund claim was rejected as the appellants have already availed Modvat credit of duty paid on the pipes - the appellants cannot seek double benefit i.e. availment of Modvat credit of duty paid on the pipes as well as not including the value of the pipes in the value of the services to be provided by them - appeal of assessee rejected.

Summary

Issues:
1. Service tax liability on polyethylene coating activity.
2. Refund claim rejection based on inclusion of pipe value in service tax calculation.
3. Availment of Modvat credit on duty paid on pipes.
4. Claiming refund after availing Modvat credit.
5. Review of earlier order regarding Modvat credit.

Issue 1: Service tax liability on polyethylene coating activity
The appellants were engaged in the manufacture of carbon steel/mild steel spirally welded pipes and were also involved in the polyethylene coating on ERW steel pipes sent by customers. The Tribunal acknowledged that polyethylene coating did not amount to manufacture, making the appellants liable to pay service tax under "business auxiliary services" category. The appellants discharged the service tax by considering the value of the bare pipes sent by them to customers.

Issue 2: Refund claim rejection based on inclusion of pipe value in service tax calculation
The appellants filed a refund claim for excess service tax paid during a specific period, arguing that the value of steel pipes sent by customers was mistakenly included in the service tax calculation. The claim was rejected by the original adjudicating authority and upheld by the Commissioner (Appeals) based on the reasoning that the value of the pipes was included in the service activity, and the appellants cannot claim a refund after already availing Modvat credit on the duty paid for the pipes.

Issue 3: Availment of Modvat credit on duty paid on pipes
The Commissioner (Appeals) noted that the appellants had availed Modvat credit on duty paid for the pipes used in the service activity. The proceedings to disallow this credit were dropped as the value of the bare pipes was considered in the service value calculation. The Commissioner emphasized that the appellants cannot seek double benefit by claiming a refund after already availing the Modvat credit.

Issue 4: Claiming refund after availing Modvat credit
The Tribunal agreed with the Commissioner (Appeals) that the appellants could not claim a refund on the ground of excluding the value of bare pipes from the service tax calculation after having already availed Modvat credit on the duty paid for those pipes. The Tribunal found no merit in the appellants' submission and rejected their appeal.

Issue 5: Review of earlier order regarding Modvat credit
The Tribunal noted that there was uncertainty regarding the review of an earlier order that dropped the proposal to deny the Modvat credit on the bare pipes. The appellants did not provide evidence of the review and reversal of the earlier order by a higher appellate forum. Consequently, the Tribunal agreed with the Commissioner (Appeals) that the appellants could not claim a double benefit and upheld the rejection of the refund claim.

In conclusion, the Tribunal upheld the rejection of the refund claim, emphasizing that the appellants could not claim a refund after availing Modvat credit on the duty paid for the pipes used in the service activity. The decision was based on the principle that the value of the bare pipes was already considered in the service value calculation, and seeking a refund would amount to seeking a double benefit, which was not permissible.