9911796707
TMI Blog2024 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... e levy has been held to be ultra-vires then the Department is not justified to demand the tax after 06.09.2019 whereas in this case, the appellant is directed to deposit the amount after the decision of the Hon ble Gujarat High Court. Both the authorities have rejected the refund on the ground that the said decision of the Hon ble Gujarat High Court has not been accepted by the Revenue and they have filed the appeal before the Hon ble Apex Court against the said decision. It is also a fact that no stay has been granted by the Hon ble Apex Court in the judgment of Hon ble Gujarat High Court cited supra. In view of this, the decision of the Hon ble Gujarat High Court is binding on the Department. We find that amount which was deposited by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m different countries. They are registered with the Service Tax Department for discharging their service tax liability under Reverse Charge Mechanism (RCM). On 27.11.2020, appellants filed a refund claim of service tax Rs.12,64,207/-, interest Rs.2,70,439/- and penalty Rs. 1,10,334/-, aggregating Rs. 16,44,980/-. The refund was filed on account of the service tax paid by appellants under Reverse Charge Mechanism during the months of June, 2017, July 2017 and November 2019, pertaining to the period April 2017 to June 2017 in respect of the service i.e. Transportation of Goods by a Vessel from a place outside India up to the Customs Station of Clearance in India. Out of amount of Rs.12,64,207/-, an amount of Rs.5,28,645/- had been paid by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r transportation of imported goods by a vessel from outside India on reverse charge basis to Customs station of clearance in India are ultravires and the impugned rules and notifications are unenforceable. He further submits that as the legal provisions imposing tax have been held to be ultra-vires, the Central Government does not have the authority to retain the tax collected from the assessee and it merits to be refunded back to them. He further submits that the ground on which the order of the Hon ble Gujarat High Court in the above cited case has been challenged before the Hon ble Supreme Court cannot be a valid ground to reject the refund claim as no stay against the order of the Hon ble Gujarat High Court has been granted by the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax including interest and penalty of Rs.11,16,335/- on ocean freight for the period from 23.04.2017 to 30.06.2017 on dated 30.11.2019 and also requested that they do not want Show Cause Notice and the case may kindly be closed. Accordingly, on request of the appellant, no Show Cause Notice was issued and the proceedings were concluded by the competent authority under the provisions of Section 73(3) of the Finance Act, 1994 as the appellant had discharged their entire service tax along with interest and penalty. He further submits that once the liability has been paid along with interest and penalty, the Revenue is not obliged to issue the Show Cause Notice as the matter stands concluded. He also cited the decision of the Hon ble Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of Rs.5,28,645/- which was deposited by the appellant on regular basis during the month of June 2017 and July 2017 as service tax under the relevant accounting head and duly reflected in their service tax returns. Further, the appellant has not applied for refund within a period of one year from the date of the High Court s order dated 06.09.2019. Therefore to the extent of refund claim of Rs.5,28,645/-, it is hit by limitation and is liable to be rejected. As regards the refund of Rs.11,16,335/- which was deposited by the appellant vide challan dated 30.11.2019 was not liable to be paid by him because by that time, judgment of the Hon ble High Court has come holding the levy as ultra-vires. Therefore, the Revenue has no right to ret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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