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TMI Blog2024 (5) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... res judicata shall or shall not apply to the given facts. It is observed that there is a fundamental material change whenOrder-in-Original subsequent to final order of this Tribunal has been passed that Apex Court has decided the issue holding that the activity is covered under GTA - these findings are not sustainable as the classification was not the subject matter of the impugned show cause notice. The entitlement of appellant for the impugned refund, the issue of time bar and the issue of unjust enrichment have already stands decided in favor of the appellant including the issue of classification of the impugned activity of transportation (at least for this particular case). The refund claim has wrongly been rejected. The case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR VERSUS SINGH TRANSPORTERS [ 2017 (7) TMI 494 - SUPREME COURT] is held to have wrongly been applied retrospectively. The Commissioner (Appeals) have traversed while passing the impugned orders in both these appeals. The order are contrary to the findings of this Tribunal amounting to an act of Judicial indiscipline. Accordingly, the impugned order stands set aside. Appeal allowed. - HON BLE DR. RAC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed holding that the service received by the appellant is Goods Transport Service . After relying upon the decision of Hon ble Supreme Court in the case of Commissioner of Central Excise and Service Tax, Raipur Vs. Singh Transporters (Civil Appeal No. 7460/2017), wherein the activity of transportation of coal from pitheads to the railway sidings was held to be classifiable under the head Transport of Goods by Road Service . The said Order-in- Original has been confirmed vide the Order-in-Appeal bearing No. 46-18-19 dated 23.04.2018. Being aggrieved this appeal has been filed. Subsequent to the said remand order that Order-in-Original No. 19/2017-18 dated 30.01.2018 was passed held that the refund claim is not barred by time. It does not attract the clause of unjust enrichment. However, the refund claim was still rejected holding the service received by the appellant to be a Goods Transport Service. After relying upon the decision of Hon ble Supreme Court in the case of Commissioner of Central Excise and Service Tax, Raipur Vs. Singh Transporters (Civil Appeal No. 7460/2017), wherein the activity of transportation of coal from pitheads to the railway sidings was held to be classifiab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - dated 29.07.2015. The said refund claim was filed subsequent to the final order of this Tribunal in appellant s own case, however, their Headquarters at Bilaspur. Vide Final Order No. 53209 of 2014 dated 13.08.2014, the Tribunal held that the activity of transportation of coal within and outside of the mining areas of M/s. SECL cannot be said to a GTA Service and hence M/s. SECL was held not liable to pay service tax under RCM as recipient of GTA Service. The amount as claimed for refund was deposited by the appellant after the original adjudicating authority had confirmed the demand against M/s. SECL Headquarters with respect to the show cause notice dated 20.11.2006 as was issued to M/s. SECL. 5.2 It is observed that the final order of this Tribunal has set aside the department s proposal of show cause notice dated 20.11.2006 about tax liability of appellant s under RCM for rendering Goods Transport Agency by holding that to fall within the ambit of the defined expression issuance of a consignment note is no-derogable ingredient. Since there were no consignment notes issued by the transporters while transporting coal within mine area from pitheads to Railway siding, the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2018. 5.6 These observations are sufficient for us to hold that the issue which has been reopened vide the order under challenge about the impugned activity of transportation of coal within and outside the coal mine is or is not a Goods Transport Agency Service. The findings that this activity does not amount to Goods Transport Agency for want of consignment note vide Final Order dated 13.08.2014 has since attained finality. 5.7 Post the remand, the Hon ble High Court of Chhattisgarh reaffirmedthe findings of Final Order No. 52655/2016 dated 28.07.2016 that since the transporters were not issuing consignment notes, the services rendered by them to M/s. SECL were not classifiable under GTA Service. Appellant was held not liable to pay service tax under RCM under GTA Service. Following are the findings of the Commissioner (Appeals) order dated 22.11.2016: (i) The denial or refund on the ground that no order has been passed against the appellant is absolutely erroneous as the order of CESTAT dated 28.07.2016 is also in respect of entire M/s. SECL as a whole. (ii) The appellant has contested the amount of service tax paid by them before the higher appellate authority, the payment ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of transportation (at least for this particular case). We hold that the refund claim has wrongly been rejected. Singh Transporters (supra) is held to hav wrongly been applied retrospectively. 7. We also observe that subsequent to Order-in-Appeal dated 22.11.2016 directing remand, there has been two set of adjudications based on ground of jurisdiction. This issue has also been dealt in Order-in-Appeal dated 22.11.2016 in following words: It is completely immaterial as to whether or not demand or dispute was specifically raised by Jabalpur commissionerate or erstwhile Bhopal Commissionerate under whose jurisdiction SECL, Johilla falls. Once the dispute is raised by Central Excise department under the CBEC, and the appellant has contested the matter before the authority (Raipur Commissionerate) which raised the dispute, the payment of tax till the time appeal was pending before the CESTAT would be deemed to be Under Protest and once, the decision has been rendered by the CESTAT in their favour, the appellant is legally eligible to claim refund under clause (ec) of the Explanation to the said Section 11B of the Central Excise Act, 1944. 8. We now take note of miscellaneous applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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