2022 (7) TMI 822 - AT - Service Tax

Cash Refund of service tax paid - ocean freight - refund sought on the ground that appellant is entitled for Cenvat credit of service tax paid on ocean freight - Section 142(3) read with Section 11B - HELD THAT - Identical issue decided in the case of GALAXY POLY PLAST INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE ST, VADODARA 2022 (7) TMI 567 - CESTAT AHMEDABAD where it was held that since now appellant argued that they are entitled to refund of service tax paid on ocean freight there will not have any effect on reference made by the Division Bench. Further this issue was not 3 EXCISE Appeal No. 10266 of 2020-SM examined by the lower authorities about the levy of service tax on ocean freight and also the judgment of Hon ble Gujarat High Court was not available before the lower authorities. The matter is remanded to the original authority.

Summary

Issues involved:
Whether the appellant is entitled to a refund of service tax paid on ocean freight on the ground of Cenvat credit and cash refund under Section 142(3) read with Section 11B.

Analysis:

The judgment by the Appellate Tribunal CESTAT Ahmedabad, delivered by Hon'ble Mr. Raju, Member (Technical), addressed the issue of entitlement to a refund of service tax paid on ocean freight. The appellant claimed the refund based on being entitled to Cenvat credit of service tax paid on ocean freight, seeking cash refund under Section 142(3) read with Section 11B. The Tribunal considered the submissions from both sides and noted that a similar issue was addressed in the case of Galaxy Poly Plast Industries, where the matter was remanded for further review. The Tribunal highlighted that the lower authorities had rejected the refund claim on the grounds that cash refund of Cenvat credit of service tax paid on ocean freight was not admissible. Referring to a specific case involving Bosch Electrical Drive India Private Limited, the Tribunal decided not to pass an order on the cash refund of Cenvat credit under Section 142(3) of the CGST Act, 2017. The Tribunal emphasized that the appellant's claim was based on the argument of entitlement to a refund of service tax paid on ocean freight, distinct from the issue of the legality of the service tax levy itself. As the matter regarding the levy of service tax on ocean freight was not examined by the lower authorities and the judgment of the Hon'ble Gujarat High Court was not considered, the Tribunal remanded the case to the original authority for further review, following the precedent set in the Galaxy Poly Plast Industries case. The judgment was dictated and pronounced in the open court by the presiding Member.