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TMI Blog2018 (8) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. Appeal dismissed - decided against appellant-Revenue. - D.B. Central/Excise Appeal No. 64/2017 - - - Dated:- 21-2-2018 - MR. K. S. JHAVERI AND MR. VIJAY KUMAR VYAS, JJ. For The Appellant(s) : Mr. Siddharth Ranka with Mr. Saurabh Harsh For The Respondent(s) : Mr. Sanjay Jhanwar Judgment By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the assessee. This court while admitting the matter framed the following questions of law:- Whether the ld. CESTAT was right in law in holding that the assessee being service recipient was entitled to file the refund claim before its jurisdictional authority instead of jurisdictional authority of the service provider where the service tax was paid.? Thereafter, while allowing the application (43343/17) two more questions were added and the same reads as under: i) Whether the ld. CESTAT was right in law in holding that the limitation of one year is to be counted from the date of issue of credit note by the service provider and not from the date of payment of service tax.? ii) Whether the ld. CESTAT was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of duty, the explanation specifically provides that export includes goods shipped as provision or stores for use on board a ship proceedings to a foreign port or supplied to a foreign going aircraft. Resultantly, the relevant date would be the one prescribed in sub-clause (i) of sub-section (a) when goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded or leaves India. Accordingly, the relevant date in the present case would be when the fuel was supplied by the petitioner to Air India for its foreign going flight which left the country. In the present case, such supply was made on different dates between April, 2005 and October, 2005. Thus the refund claim which was filed on 22nd March, 2007 was clearly beyond the period of one year. It thus clearly emerges that refund claim was made beyond the period of limitation prescribed under Section 11B of the Act. 19. In view of the above discussion, we find that the authorities were justified in holding that the refund claim of the petitioner was barred by limitation prescribed under Section 11B of the Act. We find no infirmity in the impugned orders. The petition is therefore, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ascertain whether the services were rendered in different locations with separate service tax registration or whether appellant had taken centralized registration. Nowhere in the proceedings, either in the investigation or in the show cause notice, has it come out that the appellant had taken centralized registration. In fact the Service Tax registration number itself shows that centralized registration was not taken. The Commissioner has erred in mixing the issue of centralized accounting and centralized registration. The Commissioner of Service Tax is appointed under a notification which authorizes him to exercise powers under Service Tax within the jurisdiction of Mumbai. There is no notification which authorizes him to exercise powers in respect of cases originating outside his jurisdiction. Therefore clearly the adjudication order has been passed beyond the jurisdiction of the Commissioner in respect services rendered outside Mumbai. In our view, it would have been appropriate for the Commissioner not to pass the Order in respect of services rendered outside Mumbai jurisdiction. The Commissioner should have refrained from adjudicating and instead could have initiated the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under Section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose in as much as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions. Moreover, if the Revenue's contention that once territorial jurisdiction is conferred, the Collector of Customs (Preventive) becomes a proper officer in terms of Section 28 of the Act is accepted, it would lead to a situation of utter chaos and confusion, in as much as all officers of customs, in a particular area be it under the Collectorate of Customs (Imports) or the Preventive Collectorate, would be proper officers . In our view therefore, it is only the officers of customs, who are assigned the functions of assessment, which of course, would include re-assessment, working under the jurisdictional Collectorate within whose jurisdiction the bills of entry or baggage declarations had been filed and the consignments had been cleared for home consumption, will have the jurisdiction to issue notice under Section 28 of the Act. Counsel for the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o RGTIL in terms of the determination made by the Regulatory Board. The entire record would indicate that the only objection of the revenue was to the maintenance of the refund application at the behest of the assessee. The fact that the assessee has not passed on the burden has been amply established in the order of the adjudicating authority. This finding was not challenged by the revenue in the grounds of appeal before the first appellate authority or for that matter in the form of cross objections before the Tribunal. The finding of fact of the first appellate authority to the effect that the prices of urea are prescribed by the Government and that the final product manufactured by the assessee is exempted from the payment of excise duty and there would be no occasion for unjust enrichment has not been questioned. Jindal Steel Power Limited vs. Commercial of Cus. C. Ex., Raipur; 2016 (42) S.T.R. 694 (Tr.Delhi) 6. The fact that the recipient of the service is also entitled to file a claim for refund is no longer resintegra. The issue stand concluded by the Constitution Bench decision in Mafatlal Industries Limited vs. Union of India MANU/SC/1203/1997 : 1997 (89) EL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India. A refund of any duty will also take place from the said Fund only. We observe that the learned Commissioner (Appeals), has dealt with the entire aspect in details in the impugned order and we are in agreement with his findings that the refund cannot be rejected on the ground that the payment was made by the registered office at Delhi and not by the factory at Ghaziabad. We, therefore, uphold the refund of ₹ 50 lakhs to M/s. Padmini Polymers. Accordingly, Appeal No. E/787/03-NB(C), filed by the Revenue, is rejected. Commissioner of C.Ex., Tirupati vs. Kurool Cylinders Pvt. Ltd. 2007 (219) E.L.T. 473 (Tri. Bang.) 5. We have gone through the records of the case carefully. There are many decisions of the Tribunal holding that when there is price escalation, the assessment would be deemed provisional and the refund claim would not be hit by time bar. This Bench itself in the following cases has allowed the appeals of the assessee for refund of the amount on account of downward revision of the prices: (a) CCE, Hyderabad v. R.M. Cylinders (P) Ltd. Hyderabad Cylinders (P) Ltd. Final Order No. 1933 1934/2005 dated 22.11.2005. (b) Nagarjuna Constructions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department to contend that by refund of the differential duty, the respondent has unjustly enriched. The authorities under the Act with closed mind have mechanically applied the concept of unjust enrichment against the respondent. We have heard counsel for both the sides. Taking into account, the Tribunal while considering the case has rightly observed as under:- 9. In the present case, the transportation charges were determined by PNGRB in terms of the 2008 Regulations, which itself provides that the prices are provisional. The appellant as well as Gauil were aware of this fact and on later revision of price by PNGRB vide its pricing circulars, the adjustment of prices was made through credit notes. Since, only on issuance of credit note by Gail on 20.09.2010, the privisional prices were finalised, the said date in our opinion, will be considered as relevant date in terms of clause (eb) of Explanation-B to Section 11B ibid. The refund claim filed before the jurisdictional authorities on 17.01.2011 and subsequently filed before the authorities of service provider on 24.02.2011, will not hit by limitation of time as prescribed under Section 11B ibid. 10. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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