9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (11) TMI 841 - HC - Service TaxRefund of Excess Service tax paid - rejection on the ground of time limitation - HELD THAT - Identical issue came up for consideration before the Gwalior Bench of this Court in THE COMMISSIONER, CGST AND CENTRAL EXCISE VERSUS M/S NATIONAL FERTILIZERS LIMITED 2019 (8) TMI 1592 - MADHYA PRADESH HIGH COURT , wherein, while relying on the decision in COMMISSIONER OF C. EX., MUMBAI-II VERSUS ALLIED PHOTOGRAPHICS INDIA LTD. 2004 (3) TMI 63 - SUPREME COURT and M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR 2019 (5) TMI 657 - SUPREME COURT it was held that the Tribunal has grossly erred in law in holding that the claim for refund rejected for the reason being time barred, should be treated as within time and the claims are to be processed , which deserves to be and is hereby set aside. Even shifting the burden on the department to find out as to whether the assessee has not passed the burden of tax on the final consumer cannot be countenanced in the given facts of present case. Impugned order set aside - refund is to be allowed - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Unjust Enrichment and Refund Claim 2. Provisional Assessment and Limitation Period 3. Entitlement to Refund and Credit Note Issuance Issue-wise Analysis: 1. Unjust Enrichment and Refund Claim: The primary issue concerns whether the refund claimed by the respondent is hit by the principles of unjust enrichment. The court examined whether the actual cost of transportation and material, taken by the party to arrive at the product costing and subsequently recovered from their buyers, affects the refund claim. It was noted that the respondent claimed a refund of ?1,15,10,089/- for excess Service Tax paid for the period from 01.03.2009 to 15.06.2010, under the service category of 'Transport of goods through Pipeline Services'. The discrepancies observed included the lack of documentary proof showing payment of Service Tax by the service provider to the government and evidence that the tax incidence was not passed on to any other person. The court concluded that without such proof, the refund claim could not be granted, emphasizing the principle of unjust enrichment as laid down in the case of M/s MRF Ltd. Vs. Commissioner of Central Excise, Madras. 2. Provisional Assessment and Limitation Period: The second issue addressed whether the Tribunal was correct in holding that the assessments of M/s GAIL were provisional, despite no application or formal order for provisional assessment being issued by the revenue. The court scrutinized the claim filed on 04.04.2011 for the period from 15.03.2009 to 15.06.2010 and found it time-barred under Section 11B of the Central Excise Act, 1944. The court referenced the decision in Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd., which clarified that claims for refund after final assessment must comply with the limitation period prescribed in Section 11B. The court held that without a provisional assessment, the refund claim beyond the statutory period was not admissible. 3. Entitlement to Refund and Credit Note Issuance: The third issue involved whether the Tribunal erred in law by holding that the respondent was entitled to a refund due to the issuance of a credit note, ignoring the Supreme Court's ruling in M/s MRF Ltd. Vs. Commissioner of Central Excise, Madras. The court reiterated that duty is chargeable on the price prevailing at the time of actual removal of goods, and any subsequent reduction in price does not create a right for a refund. The Tribunal's reliance on its earlier decision in Chambal Fertilizers and Chemical Ltd. vs. CCE, Indore, was found to be misplaced. The court emphasized that the issuance of a credit note does not negate the principle of unjust enrichment or the statutory requirements for claiming a refund. Conclusion: The court set aside the impugned order dated 17.02.2017 by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi, and upheld the orders of the Adjudicating Authority and its affirmation. The substantial questions of law were answered against the assessee, reinforcing the principles of unjust enrichment, the necessity of provisional assessment for refund claims, and the adherence to the limitation period under Section 11B of the Central Excise Act, 1944. The appeal was disposed of in terms of the order passed in CEA No.96/2018, with no costs awarded.
|
