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TMI Blog2021 (12) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant to notice, the Revenue has on the contrary sought to shift this burden upon the Appellant as the Notice dated 30 October 2014 did not even propose classification of ship broking services under any other taxable category. Unjust enrichment - HELD THAT:- The Appellant had adduced a Certificate from a Chartered Accountant certifying the non-availment of credit of the service tax alleged to have been paid mistakenly under the category Business Auxiliary Services as also regarding the incidence of tax having not been passed on to any other person. There is merit in the contention of the Appellant that the Certificate of an expert cannot be discarded unless a contrary opinion has been expressed by another expert - the findings of the appellate authority as regards the CA Certificate dated 25 March 2015 being not a conclusive proof of the incidence of tax not having been passed on by the Appellant to any other person also cannot be accepted. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.76528 of 2016 - FINAL ORDER NO.75794/2021 - Dated:- 3-12-2021 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER AND SHRI RAJU, TECHNICAL MEMBER Shri Arvind Baheti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons adduced by the adjudicating authority for rejecting the refund claim. The Ld. Appellate Commissioner also went on to hold that ship broker services does not fall under the category of negative list of taxable services under Section 66B of the Finance Act, meaning thereby that the ship broker services were exigible to service tax and that such services could be suitably classified under the taxable category Business Support Services . 3. The Ld. Consultant, Shri Arvind Baheti appearing for the Appellant has assailed the Order-in-Appeal on the following alternate grounds: A. The decision in Inter Ocean shipping case with regard to non-taxability of ship broking services under the taxable category Business Auxiliary Services was not premised on the domicile of the ship broker. Therefore, the factual distinction sought to be created by the Revenue that it was a case of export and not import is irrelevant as the classification of ship broker services under Business Auxiliary Services was rejected by the Tribunal without even getting into the Export of Service Rules, 2005. Consequently, the ratio of the said case is squarely applicable to the facts of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment does not arise even otherwise [P.K. Prestressed (P) Ltd. Vs. CCE, Lucknow 2018 (19) GSTL 656 (Tri. All.) and Radicura Pharmaceuticals Pvt. Ltd. Vs. Commr. of S.T, Delhi-II 2015 (39) STR 485 (Tri. Del.)]. 4. The Ld. Departmental Representative, Mr.K.Chowdhury supports the Order-in-Appeal and reiterates the findings of the Appellate Authority. The Ld. D.R. contends that the scope of Business Support Service is wide enough to cover ship broking services within its fold. Moreover, the principle of unjust enrichment is equally applicable to refund claim filed by service recipient discharging tax on the reverse charge basis. 5. Heard both sides through video conferencing and perused the appeal records. 6. We find that the crux of the issue before us relates to refund of service tax inadvertently paid by the Appellant on ship broking services availed from outside India during the relevant period under the taxable category Business Auxiliary Service , on a reverse charge basis. Since the refund claim is premised on the decision of the Tribunal in the Inter Ocean case (supra) it is imperative to analyze the said decision. In the said case, the main point of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purely intermediaries who do not act on behalf of either ship owner or the charterer and, therefore, they cannot be said to be commission agents. 11.1 In our view, the above judgment of Hon ble Nagpur High Court is squarely applicable to the facts of this case and the appellants while acting as ship brokers cannot be called commission agents of the ship owner or ship charterer and thus are not covered by the definition of Business Auxiliary Service . Although, an alternate contention with respect to export of ship broking services was advanced by the Appellant therein, the same was not even gone into since the main issue itself stood decided in favour of the Appellant therein as is evident from para 1.2, 6 12 of the said decision. Further, an appeal filed by the department against the said decision before the Hon ble Supreme Court has also been rejected both on merits as well as on limitation 2015 (40) STR 210. Therefore, the issue as regards non-taxability of ship broking services under the taxable category business auxiliary services is no more res integra. Since the nature of services in the instant case being that of a ship broker is not in dispute, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances, the principle is well settled that the classification of taxable service which is not alleged in the Show Cause Notice cannot be concluded to support levy of tax The Adjudicating Authority vide the impugned order has also held the entire activity to be classifiable under mining services. But those findings are contrary to the Show Cause Notice and as such are not sustainable. We draw our support from adjudicatin of Hon ble Supreme Court in the case of Caprihans India Ltd. v. CCE, 2017 (51) S.T.R. 239 (S.C.) wherein it was held that the order holding different process/the activity as other than the one mentioned in the Show Cause Notice is liable to be set aside on this ground alone. Hence, it is now settled that the classification which is not proposed in Show Cause Notice, the same cannot be concluded. For the said reason, the Order under challenge is held to suffer infirmity and is accordingly, set aside. 8. In so far as the aspect of unjust enrichment is concerned, we find that the Appellant had adduced a Certificate from a Chartered Accountant certifying the non-availment of credit of the service tax alleged to have been paid mistakenly under the category Busines ..... X X X X Extracts X X X X X X X X Extracts X X X X
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