9911796707
TMI Blog2024 (5) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... ts is dismissed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) Shri Sandeep Pandey, Authorized Representative for the Appellant Shri Kapil Vaish, Advocate for the Respondent ORDER P. K. CHOUDHARY : The miscellaneous application (Early Hearing) has been filed by the respondent praying for out of turn hearing of the appeal. 2. Considering the submissions made by the learned counsel for the respondent, the prayer for Early Hearing of the appeal is accepted. Accordingly Early Hearing Application filed by the respondent is allowed. With the consent of both the sides appeal itself is taken up for hearing toady. 3. The present appeal has been filed by the Revenue assailing the Order-In-Appeal - NOI-EXCUS-002-APP-166-2022-23, dated 25/08/2022 passed by Commissioner (Appeals) CGST, Noida. 4. The facts of the case in brief are that the respondent is engaged in the manufacture of edible oil and were importing crude oil. A refund claim of Rs.21,20,859/- was filed on 06.09.2021 which was deposited pursuant to an audit for the period April 2017 to June 2017. It was the case of the Department that the respondent was liable for payment of service tax on reverse charge mechanism on the ocea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is hereby allowed. The Notification Nos. 15/2017-S.T. and 16/2017- S.T. making Rule 2(1)(d)(EEC) and Rule 6(7CA) of the Service Tax Rules and inserting Explanation-V to reverse charge Notification No. 30/2012- S.T. is struck down as ultra vires Sections 64, 66B, 67 and 94 of the Finance Act, 1994; and consequently the proceedings initiated against the writ applicants by way of show cause notice and enquiries for collecting service tax from them as importers on sea transportation service in CIF contracts are hereby quashed and set aside with all consequential reliefs and benefits. 10. In view of the aforesaid decision of the Hon'ble High Court, Gujrat 1 find that since the notifications on the basis of which service tax was imposed on the said Ocean Freight under reverse charge mechaniam have been struck down as ultra vires, appellant was not liable to pay service tax @ 1.4% of CIF on Ocean Freight. 11. Now, the question arises as to whether provisions of time bar as provided under Section 11B of the Central Excise Act, 1994 will be applicable or not when the levy of service tax in respect of ocean freight has been declared as ultra vires by the Hon'ble Gujrat High Court vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r refund. It would be a parody of economic justice to refund the duty to a claimant who has already collected the said amount from his buyers. The refund should really be made to the persons who have actually borne its burden that would be economic justice. Conferring an unwarranted and unmerited monetary benefit upon an individual is the very anti-thesis of t the concept of economic justice and the principlesunderlying Articles 38 and 39. Now, the right to refund arising as a result of declaration of unconstitutionality of a provision of the enactment can also be looked at as a statutory right of restitution. It can be said in such a case that the tax paid has been paid under a mistake of law which mistake of law was discovered by the manufacturer/assessee on the declaration of invalidity of the provision by the court. Section 72 of the Contract Act may be attracted to such a case and a claim for refund of tax on this score can be maintained with reference to Section 72. This too, however, does not mean that the taxes paid under an unconstitutional provision of law are automatically refundable under Section 72. Section 72 contains a rule of equity and once it is a rule of equity, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. 18. Accordingly, I hereby allow the present appeal by setting aside the impugned O10 04/Ref./AC/BLY-1/21-22 dated 15.3.2022 passed by the Assistant Commissioner, Central GST, Division-1, Bareilly with the directions to adjudicating authority to grant refund in question within 30 days of receipt of this order 6. Being aggrieved the Revenue has filed the present appeal before the Tribunal on the following grounds:- (a) Gujarat High Court is not the jurisdictional High Court. (b) The decision of Gujarat High Court in case of Sal Steels Ltd has been challenged before the Supreme Court. (c) The claim is barred by limitation as the service tax has neither been paid under protest nor under mistake of law. (d) Refund can not be granted without satisfying the principles of unjust enrichment. (e) Monetary threshold limit is not applicable in the following cases - Where the constitutional validity of the provisions of the Act or Rules is under challenge. - Where notification/instructions/order or circular has been held to be illegal or ultra virus. 7. Heard both sides and perused the appeal records. 8. I find that the issue in the present appeal is no more res integra and the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be computed and assessed on the value of the service as laid down under the machinery provision of Section 67 of the Finance Act, no service tax can be assessed and charged from third parties like the Indian importers in CIF contracts, because value of sea transportation service is not available with them in CIF contracts. ................ 58. In view of the aforesaid discussion, the writ application succeeds and is hereby allowed. The Notification Nos. 15/2017-ST and 16/2017-ST making Rule 2(1)(d)(EEC) and Rule 6(7CA) of the Service Tax Rules and inserting Explanation-V to reverse charge Notification No. 30/2012-ST is struck down as ultra vires Sections 64, 66B, 67 and 94 of the Finance Act, 1994; and consequently the proceedings initiated against the writ applicants by way of show cause notice and enquiries for collecting service tax from them as importers on sea transportation service in CIF contracts are hereby quashed and set aside with all consequential reliefs and benefits. 9. In view of above authoritative pronouncement, the issue involved in the present case is no more res-integra and the Appellant cannot be fastened with any service tax liability on ocean freight. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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