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TMI Blog2019 (3) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... alled post-production activity. However, no evidence or technical reasoning has been put forth by Revenue to support their non-acceptance of the expert opinion produced by the respondent. Nor has the department come forth with any counter expert opinion from another independent and credible authority. Indubitably, the Indian School of Mines, Dhanbad is a National Institute of repute, and, independent opinion given by the three Professors of the Department of Petroleum Engineering of that Institute deserves to be given respect and credibility, unless that opinion is contradicted by another expert authority of equal standing, which is not the case here - there is no infirmity in the LAA accepting the expert opinion submitted by the respondent to assist in his conclusions that the activity of supply of floating rigs by Aban would be covered under the category of “supply of tangible goods service” and that therefore there is no liability to pay service tax for the said supply of floating rigs during the disputed period. The certificates issued by Aban and by CPCL as also the agreement between CPCL and the respondent, the invoices issued by respondents to CPCL, which have been submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny classification dispute. (ii) The assesse had relied on the Bombay High Court judgment in the case of Indian National Ship Owners Association Others vs UOI in support of their contention that the activity would be classified under the category of Supply of tangible goods service, but the department had filed SLP in the Hon ble Supreme Court against the order of the High Court. (iii) Out of the total refund claimed, an amount of ₹ 10,42,56,531/- paid during the period from 05.09.2007 to 05.04.2008 is hit by time bar and the remaining amount cannot be sanctioned on the above grounds. (iv) The assessee had not produced any documentary evidence to show that the incidence of duty had not been passed on by them to any other person. (v) The assessee as a service receiver had not produced any disclaimer certificate from M/s. Aban Offshore Ltd. 2. In appeal, the commissioner (Appeals) vide impugned order dt. 25.08.2011 allowed the appeal inter alia, on the grounds that the activity of supply floating rigs by Aban to the respondents for post-extraction work is squarely covered under supply of tangible goods service , hence the respondent is liable to pay service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had neither invoiced service tax nor they had paid service tax is not accepted since appellant is not providing any service to CPCL to charge and collect service tax but is only clearing finished goods, namely, crude oil to CPCL. Hence respondents have not proved that they have not passed on tax burden to others. iv) Following the ratio laid down by the Hon ble Supreme Court in CCE Kanpur Vs Flock India Private Ltd. - 2000 (120) ELT 285 (SC), the claim of the respondents for refund without disputing classification accepted by the service provider is not acceptable. 4. On the other hand, Shri N. Venkatraman, Senior Advocate representing the respondents made oral submissions which are broadly summarized as under : i) In the related SCN dt. 17.7.2009, the grounds for rejection of refund claim is as under : (a) Respondents have relied on judgement of Bombay High Court in INSA, however department has filed S.L.P in Supreme Court against the said judgment. (b) Respondents have claimed refund of service tax paid during the period 01.06.2007 to 15.05.2008 by refund application filed on 05.05.2009, which is beyond one year from relevant date as mandated in Section 11B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents; that they have not applied for / or claimed any refund on the said service tax amount paid by them; that they have no objection for refund of the above service tax to the respondents. vi) The expert opinion given by Professors of Indian School of Mines, Department of Petroleum Engineering, Dhanbad has specifically opined that the impugned floating production system is not capable of carrying out any drilling or work-over operations because the crucial technological requirements such as motion and weathervane compensation systems and many other drilling equipments, which are required for drilling are not available in the vessel; hence it is exclusively used for post production operations only; based on the scope of the work and considering capability of the vessels, the contractor is not involved with the mining operations; that the contractor s role is related to post-mining. The Tribunal in the case of Doyang Tea Estate Vs CCE Shilling - 2005 (186) ELT 342 (Tri-Kolkata) and subsequently in Farm Fresh Foods Pvt. Ltd. Vs CCE Chandigarh 2009 (2410 ELT 74 (Tri.-Del.), have held that expert opinion submitted by assessee cannot be brushed aside or demolished by Revenue in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the Supreme Court. The submission of appellants that limitation period of Section 11B ibid would not be applicable to them since the tax was paid under mining service by misinterpretation of law and hence collected by department without authority of law, was not accepted by original authority on the grounds that classification of service under mining service was not contested by the claimant. With regard to the unjust enrichment original authority held that appellants had not produced sufficient documentary evidence to prove that tax element has not been passed on to their customers. 6.2 We find that the lower appellate authority has taken note of the grounds raised in the SCN and the rejection of the refund claim thereon on the said ground by the original authority in para 2.2 and 5.1 of the impugned order. The lower appellate authority has addressed, in detail, the issue whether activity of supply of floating rigs would be covered under mining service or under supply of tangible goods service , in paras 5.3 to 5.7 of the impugned Order. We find that the lower appellate authority has correctly concluded that supply of tangible goods service covers a situation where tan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en respect and credibility, unless that opinion is contradicted by another expert authority of equal standing, which is not the case here. We therefore find merit in the reliance of Ld. counsel on the Tribunal s decisions in Doyang Tea Estate (supra) and Farm Fresh Foods Pvt. Ltd. (supra), which have inter alia laid down that the expert opinion brought by the assessee cannot be brushed aside unless demolished by opinion of another expert. Hence we do not find any infirmity in the LAA accepting the expert opinion submitted by the respondent to assist in his conclusions that the activity of supply of floating rigs by Aban would be covered under the category of supply of tangible goods service and that therefore there is no liability to pay service tax for the said supply of floating rigs during the disputed period. 6.4 The certificates issued by Aban and by CPCL as also the agreement between CPCL and the respondent, the invoices issued by respondents to CPCL, which have been submitted by the Ld. Counsel in the course of arguments all serve to indicate that unjust enrichment is not applicable in the instant case and that price fixation is beyond the control of respondent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 27 of the Act, as it now stands, it is not open to an authority to refuse to consider the application for refund only because no appeal has been filed against the assessment order, if there is one. 13. As far as the present case is concerned, there was indeed no assessment order as such passed by the customs authorities. Although under Section 2(ii) of the Act, the word assessment includes a self-assessment, the clearance of the goods upon filing of the B/E and payment of duty is not per se an assessment order in the context of Section 27(1)(i) as it stood prior to 8th April, 2011, particularly if such duty has not been paid under protest. In any event, after 8th April, 2011, as noticed hereinbefore, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such person under Section 27(1) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal. 14. The Assistant Commissioner (Refund), in the present case, appears to have not noticed the decision of this Court in Aman Medi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o authority to retain the same. If the adjudicating authority was not satisfied with the Chartered Accountant s certificate and the other material produced by the petitioner, he could have called upon the petitioner to produce further documentary evidence in support of its claim that it had not passed on the incidence of duty to the purchaser. However, without affording a reasonable opportunity to the petitioner to produce documentary evidence in support of its claim that there was no unjust enrichment, the adjudicating authority was not justified in holding that there was unjust enrichment. Therefore, the finding that the petitioner s claim is hit by unjust enrichment cannot be legally sustained. 11. A similar view has been taken by the Bombay High Court in the case of Parijat Construction Vs. Commissioner Excise, Nashik, reported in 2018 (359) ELT 113 (Bom), where the Bombay High Court has held as under :- 4. We are of the view that the issue as to whether limitation prescribed under Section 11B of the said Act applies to a refund claimed in respect of service tax paid under a mistake of law is no longer res integra. The two decisions of the Division Bench of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under : 5. We are of the view that the issue as to whether limitation prescribed under Section 11B of the said Act applies to a refund claimed in respect of service tax paid under a mistake of law is no longer res integra. The two decisions of the Division Bench of this Court in Hindustan Cocoa (supra) and Commissioner of Central Excise, Nagpur v. M/s. SGR Infratech Ltd. (supra) are squarely applicable to the facts of the present case. 6. Both decisions have held the limitation prescribed under Section 11B of the said Act to be not applicable to refund claims for service tax paid under a mistake of law. The decision of the Supreme Court in the case of Collector of C.E., Chandigarh v. Doaba Co-Operative Sugar Mills (supra) relied upon by the Appellate Tribunal has in applying Section 11B, limitation made an exception in case of refund claims where the payment of duty was under a mistake of law. We are of the view that the impugned order is erroneous in that it applies the limitation prescribed under Section 11B of the Act to the present case were admittedly appellant had paid a Service Tax on Commercial or Industrial Construction Service even though such ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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