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TMI Blog2023 (12) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner only for the limited purpose of verification of the documents. This is clear from paragraph 10 of the remand order. The Assistant Commissioner, pursuant to the remand order, did record a categorical finding that the bar of unjust enrichment would not be attracted since the amount was paid under reverse charge basis. After having held so, the Assistant Commissioner should have granted refund but what transpires from the order dated 30.1.2018 passed by the Assistant Commissioner is that he further proceeded to examine whether the appellant would be entitled to refund and for this purpose, in view of the decision of the Supreme Court in Singh Transporters, concluded that the transportation of coal within the mining area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 13.08.2014 passed by the Tribunal in the own case of the appellant pertaining to the Head Office, a refund claim was filed by the appellant in July, 2015 seeking refund of service tax paid under goods and transport agency service [GTA] on a reverse charge basis for the period 2005-11. It needs to be stated that the Tribunal in the order dated 13.08.2014 had specifically held that service tax could not be levied under GTA service under reverse charge basis on the appellant. 3. However, a show cause notice dated 17.08.2015 was issued to the appellant contending that the order dated 13.08.2014 passed by the Tribunal did not pertain to the appellant and for the reason that the claim was not filed within the time prescribed under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtion of the order passed by the Commissioner (Appeals) is reproduced below: 10. In view of the Final Order No. ST/A/52655/2016- CU(DB) dated 28.07.2016 (arising out of the Order-in- Original No. COMMISSIONER/RPR/17/2008 dated 19.02.2008) and No. ST/A 53553/2016-CU(DB) dated 26.08.2016 (arising out of the Order-in-Appeal No. 18(ST) RPR-I/2010 dated 30.03.2010) of the Hon'ble Cestat, New Delhi, no liability to pay service tax arose on the appellant as recipient of GTA services under the reverse charge mechanism and therefore the appellant became entitled, to refund claim, if otherwise admissible. However, it is observed that the impugned order is silent about the vital aspects such as whether the verification of challans were conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court. 8. Pursuant to the order dated 22.11.2016 passed by the Commissioner (Appeals), the Assistant Commissioner by order dated 30.1.2018 held that the bar of unjust enrichment would not be attracted since the amount was paid under reverse charge basis. However, the refund claim was rejected by the Assistant Commissioner following the decision of the Supreme Court in Commissioner of Central Excise and Service Tax, Raipur vs. Singh Transporters [2017 (4) G.S.T.L. 3 (S.C.)]. 9. It is against the aforesaid order dated 30.01.2018 passed by the Assistant Commissioner that the appellant filed an appeal before the Commissioner (Appeals), who by order dated 30.01.2018 dismissed the appeal in view of the decision of the Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pported the impugned order and has contended that in view of the directions issued by the Commissioner (Appeals) on 22.11.2016, the Assistant Commissioner and the Commissioner (Appeals) were justified in examining whether the appellant, on merits, would be entitled to refund or not. 14. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 15. All that is required to be examined in this appeal is as to whether the Assistant Commissioner and the Commissioner (Appeals) in their orders dated 30.01.2018 and 23.04.2018 travelled beyond the remand order. 16. As noted above, the Commissioner (Appeals) in the order dated 22.11.2016 held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Supreme Court in Singh Transporters would not be relevant for the purpose of the controversy involved in this appeal because it has been found as a fact in this appeal that consignment notes had not been issued by the transporters, which is an essential requirement for a service to be classified as GTA service. 19. This is what was also observed by the Kolkata Bench of the Tribunal in Mahanadi Coalfields Ltd and paragraph 12 of the decision is reproduced below: 12. We also find that the same view has been consistently followed by the co-ordinate Benches of the Tribunal, the decisions which have been admitted for consideration before the Hon'ble Supreme Court in Revenue Appeals. We note that though the matter is pending ..... X X X X Extracts X X X X X X X X Extracts X X X X
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