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TMI Blog2021 (9) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... mount is therefore set aside. Allegation that the total amount recovered by the appellant at the material time was much higher than that paid by the respondent - HELD THAT:- The issue regarding short payment of duty was also raised by corrigendum dt. 29/08/2007 issued by the Assistant Commissioner. As a result, it cannot be said that the show-cause notice did not raise any ground other than unjust enrichment. It is seen that the Order-in-Appeal did not examine the issue regarding the short payment of service tax during the month of February and March 2006 and has ignored the corrigendum to the show cause notice issued by the jurisdictional Assistant Commissioner - thus, the order of Commissioner(Appeals) is set aside on this count as well and the matter is remanded to the Commissioner(Appeals) for fresh adjudication after examining the corrigendum issued to the show-cause notice. The order of Commissioner(Appeals) is set aside in respect of the refund claim pertaining to ₹ 60 lakhs and the matter is remanded back to the Commissioner(Appeals) for examining the issue afresh and pass orders - appeal allowed by way of refund. - Service Tax Appeal No. 672 of 2009 - Final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remark:- Service tax paid under protest. The payment of service tax is on provisional basis subject to final adjustment at year end when charges are finalised and billed to us by NMPT and excess service tax aid by us is any has to be refunded to us. 2.3. The service tax collected each month on these adhoc rate transactions is credited to an account called Service Tax Collected Account (Account Code No.633). The remittance of service tax is debited to the said account within 5th of the subsequent month or on payment. All such payments have been reflected in the half yearly returns filed by the respondent along with the TR6 challans. 2.4. After arriving at the wharfage charges per MT in accordance with the MOU, the same is compared with the adhoc rate and the difference is adjusted. That is to say, if the charges worked out as per MOU is less than the adhoc rate, the difference is reduced from the concerned income head (income component) and shown as payable to MRPL or other oil companies like BPCL, IOCL etc. as the case may be in the balance sheet. Similarly, excess service tax collected and already remitted along with the ST-3 returns is also shown as payable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fall of payment of ₹ 2,08,32,876/- and therefore there was no question of any refund. The respondents filed appeal before the Commissioner(Appeals) who in his order held that in respect of the refund of ₹ 1,52,54,149/- which was rejected on ground of limitation, should not have been rejected as the assessment ought to have been considered as provisional. He relied upon various decisions of the Tribunal for this purpose. He also observed that the service recipients might have taken cenvat credit which has to be reversed if the amount excess paid service tax is granted as refund and therefore the exercise would be revenue neutral. In respect of refund of balance of ₹ 60 lakhs paid for the period February 2006 and March 2006, he held that the Order-in-Original could not have gone into issue of admissibility of refund as the show-cause notice raised only the ground of unjust enrichment. He held that the original authority has rejected the refund on grounds which were not invoked in the show-cause notice and therefore the order was held as bad in law. Further, for the purpose of unjust enrichment, the issue was remanded to the original adjudicating authority by the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,52,54,149/- relates to denial of refund by original adjudicating authority on the ground of limitation. The same was allowed by the Commissioner(Appeals) holding that the assessment should have been considered as provisional as there was a price determination clause in the MOU between the service provider and the service recipients. There is no doubt that the price between the service provider and the service recipient was not finally determined at the time of provision of service. Therefore on account of revision of price, the assessable value was required to be reworked and consequently there was a case of the respondent where they ended up paying duty more than that was required to be paid. The refund of any excess duty paid by any person is determined under Section 11B of the Central Excise Act. Section 11B prescribes a period of limitation of one year, however the said period of limitation is not applicable if the assessment is provisional. In the instant case, the claim of the respondent is that the assessment should have been deemed to be provisional as the final price was not determined at the time of provision of service and they had specially indicated in expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erit in the above contentions. Admittedly, while clearing the goods on payment of excise duty, the procedure for removal of goods on provisional basis has not been followed. The Apex Court in the case of Metal Forgings v. Union of India [2002 (146) E.L.T. 241 (S.C.)] has held that in the absence of order of provisional assessment, the clearance cannot be said to be on provisional assessment basis. 5.3. We also find that in the case of Metal Forgings Vs. UOI [2002(146) ELT 241 (SC)], the Hon ble Apex Court has observed as follows:- 11 . The next question for our consideration is whether the order made by the Assistant Collector on 22-1-1976 could be treated as a provisional classification so as to keep the period of limitation frozen. The Judicial Member in this regard came to a definite conclusion that the said order is a final order against which appeals and revisions were taken recourse to. According to the learned Member merely because there is a continuing dispute in regard to the correctness of the said order of the Assistant Collector by way of appeals and revisions, the same does not make the order of the Assistant Collector anything short of a final order, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clearance on the basis of such provisional classification. In the absence of the same, we cannot accept the argument of the Revenue that in fact the order of the Assistant Collector dated 21-1-1976 is a provisional order based on which clearance was made by the appellants or that they paid duty on that basis. On the contrary, as held by the Judicial Member the said order of classification was a final order, therefore, the Revenue cannot contend the limitation prescribed under Section 11A does not apply. In view of clear observation by Hon ble Apex Court and various High Courts, we find that the assessment cannot automatically turn provisional in absence following due procedures as prescribed under Rule 6 of Service Tax Rules. Since the assessment cannot be termed provisional in the instant case, the refund of ₹ 1,52,54,149/- claimed by the respondent is clearly barred by limitation. The case law relied by respondents does not take note of the decision of Hon ble Apex Court in the case of Metal Forgings (supra). The order of Commissioner(Appeals) in respect of the said amount is therefore set aside. 5.4. As regards the refund of ₹ 60 lakhs claimed by the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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