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TMI Blog2024 (11) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... VII, thus they had rightly filed the refund claim in the jurisdiction where they were registered for payment of service tax - Whether the Deputy Commissioner, Division-9, Service Tax-VII, action in returning the refund claim that has been upheld by the Commissioner (Appeals) is to be upheld by the CESTAT as opined by Member (Technical) or is to be set aside as opined by Member (Judicial)? HELD THAT:- In the present case, due to non-obstante clause in Section 103 (1) of the Act of 1994, the charge of service tax itself and the assessment, if any, stands nullified by the legislated Act of the Parliament and thus, there is no need of ascertaining the fact, as to who would be considered as the jurisdictional proper officer for grant the refund of the service tax amount. In fact, Section 103(2) of the Act of 1994 mandates that refund shall be made of all such service tax, which has been collected, but which would have not been so collected, had sub-section (1) been in full force at all times. Section 103 of the Act of 1994 is a complete code in itself and it does not mandate for filing of the refund claim at any specified jurisdiction. Once it is admitted that the recipient of the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion or need for seeking any re-assessment. In paragraph 4.32 of the Interim Order, learned Member (Technical) has observed that Section 103 of the Act of 1994 or Section 11B of the Act of 1944, did not permit for filing of the refund claim in multiple jurisdictions. In the present case, it is not the case of the appellants that they wanted to file the claim in multiple jurisdictions. The appellants have in fact, filed the refund claim application only with their jurisdictional officer. Therefore, this finding is of no relevance in the present context. In fact at the end of this paragraph, it is stated that we have no hesitation in agreeing to the observations made by the Tribunal to the effect that both the jurisdictions cannot refuse to entertain the refund claim filed by the recipient of service. If this be so, then the appellants are correct in filing the claim with their own jurisdiction. It is also stated in the said paragraph that filing of claim in multiple jurisdictions, will amount to double benefit in respect of the same transaction. In the present case, the appellants have filed the claim only in one jurisdiction and in any case, it is not the case of Revenue or of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement with M/s ITD Cementation for construction work at Nhava Sheva Port. Serial Number 14 of the Exemption Notification No 25/2012-ST dated 20.06.2012 exempted construction services pertaining to a port. Thus, no service tax was paid by their contractor M/s ITD Cementation. 2.3 This exemption was withdrawn by Notification 6/2015-ST dated 01.03.2015. Accordingly, the service provider paid Service Tax for the service provided after 01.03.2015. Service provider invoiced and collected the same from the appellants. 2.4 The exemption was again introduced by insertion of clause 14A vide Notification No 96/2016 dated 01.03.2016 providing retrospective relief for the construction pertaining to an airport or port carried out during 01.03.2015 to 29.02.2016 by way of refund. 2.5 Claiming that they had paid the service tax as invoiced by the service provider, Appellant filed the refund claim as a recipient of services in the jurisdiction in which they were registered for the payment of service tax on the taxable services provided by them. 2.6 Deputy Commissioner, Division-9, Service Tax VII, Mumbai, returned the refund claim to the appellant under letter dated 08.12.2016, observing as stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that any person claiming the refund of any duty/tax may make an application to the Assistant/Deputy Commissioner. Section 11B permits any person to claim the refund. In other words, it is submitted that the Section 11B does not prescribe that the refund should be filed only by service provider and so is the case that the said section does not require that the claim be filed only in the jurisdiction of service provider. The Appellant further submits that especially under service tax law where the concept of centralized registration is in vogue, insistence of filing the claim at a specific jurisdiction is contrary to the scheme of the Act. To support the contention that the refund can be claimed by the service recipient in his own jurisdiction, the Appellant relies on the following: o Fujitsu Consulting Pvt. Ltd., [2016 (41) STR 728 (Tri.-Mumbai)] o Chambal Fertilisers and Chemical Ltd. [2017 (52) 329 (Tri.-Del)] o Vit Consultancy Pvt. Ltd. [2018 (9) GSTL 286 (Tri.-Chennai)] o Devasthan Vibhag [2008 (10) STR 415 (Tri-Del.)] o Jindal Steel Power Limited [2016 (42) STR 694 (Tri.-Del.)] The Ld. Commissioner (Appeals), without any evidence, has only raised a concern or doubt as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a taxable service pursuant to Section 103 of the Finance Act, 1994, inserted with effect from 14.05.2016. With insertion of Section 103(1) of the Finance Act, 1994 the charge of service tax itself is deleted for the services specified therein by an Act of Parliament. There is no dispute that the Appellant s services are covered by the said section. Once the charge itself is deleted, the Appellant no longer remains the person liable to pay the service tax and therefore the question of assessing the tax does not arise. Sub-Section 2 of Section 103 further mandates that refund shall be made of all such service tax collected but which would not have been so collected had sub-section (1) been in force at all material times. Thus, there is a compulsory and non-discretionary mandate under the law of the Parliament to refund the service tax, if collected. The ratio of the ITC judgement (supra) is that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings. The refund proceedings are more or less in the nature of execution proceedings and hence it is not open to the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the refund claim. It is submitted that such an action of return of refund claim filed without due adjudication, is not in conformity with the law and therefore the Appellant was never put to notice of any challenge to the assessment and its consequences on the refund filed by them. The dispute in the present case is only with respect to the jurisdiction before whom the Appellant ought to pursue his refund application. When the Appeal was filed before this Hon ble Tribunal the Revenue never filed its reply or cross objections raising any other ground. Therefore, it is submitted that it will not be correct for this Hon ble Tribunal to set up a new case which was not raised by either side. With respect to a specific query from the Bench as to whether the Appellant has claimed input tax credit of service tax charged by the vendor for which this refund claim is filed as per the Section 103, supra, on instructions, we state that the Appellant has not claimed the input tax credit of the amount sought to be refunded. Further, under instructions, we state that the vendor has paid the service tax to the government treasury and has not claimed refund of the said amount with his jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants have not brought out whether the selfassessment done by their service provider has been modified on any account including re-assessment, and hence no refund arises as held by Hon ble Supreme Court in ITC Ltd, supra. Any refund is an outflow from the Government Exchequer and can be made only in the manner prescribed and by the officer having jurisdiction to make such refund. The refund can be made only after proper verification of the following: o When the service provider was paying the service tax on the service provided, he was eligible to avail the CENVAT credit of duty/ taxes paid on the inputs and inputs services etc., used for providing the output services to the service recipient. Whether service provider has availed and utilized any CENVAT credit of the Service Tax/ duties so paid on the input services and inputs. In case service provider has availed such credit, then the same needs to be reversed/ recovered from the service provider before refund claim can be entertained. o Whether any Tax Demand-cum-Show Cause Notice has been issued for the relevant period which covers any amount involved in the refund claim can also be better examined by the jurisdictional of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OIA that though the legal positions do not bar the appellant service receiver in the present case from filing refund claim, the claim needs to be filed before the jurisdiction where such tax/duty payment was made. Section 103 of the Finance Act, 1994, as inserted by the section 159 of Finance Act, 2016 does not automatically grant refund, but it stipulates certain conditions to be fulfilled for any refund to be granted. Both, the original Adjudicating Authority as well as the first Appellate Authority have not delved on the issue of whether the conditions stipulated in Section 103 have been fulfilled or not, but the moot issue discussed at both levels was that the refund claim ought to have been filed in the jurisdiction where the Service Tax was paid. It is settled law that any Tax/Duty demand can be made by the jurisdiction where such Tax/Duty is mandated to be paid. Such Tax/Duty demand, in case of erroneously granted refund, if any in this case, can be made only by the jurisdiction where the Tax/Duty was collected and erroneously refunded. The appeal needs to be dismissed as without any merits. 4.1 We have considered the impugned order along with the submissions made in the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner in returning the refund claimed filed by the Appellants, in terms of Section 103 of Finance Act 1994, as inserted by the Section 159 of the Finance Act, 2016, vide his letter dated 08.12.2016. Commissioner (Appeal) has upheld the action of Deputy Commissioner on this account. Appellants have challenged this action, arguing that since the appellant was registered in the jurisdiction of Deputy Commissioner, Division 9, Service Tax VII, thus they had rightly filed the refund claim in the jurisdiction where they were registered for payment of service tax. In support of their contention, they have relied upon various decisions of CESTAT, which are discussed in the para below. In alternate they submit that if Deputy Commissioner, found himself lacking jurisdiction to process this refund claim, he should have transferred the same to the appropriate jurisdictional officer. 4.6 Section 103 of Finance Act, 1994 as inserted by the Section 159 of the Finance Act, 2016, is reproduced below, Section 103 of Finance Act, 1994 as inserted by the Section 159 of Finance Act, 2016 103. (1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee shall be entitled to the relief of all such service tax which has been collected but which would not have been so collected on sub-section (1) within force at all material times and it further provided that notwithstanding anything contained in the said Chapter, an application for claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of Hon ble The President. It is required to be noted that the assent of Hon ble The President was received on 14.05.2016 and therefore, the application for claim of refund of the service tax was required to be made within a period of six months from 14.05.2016. In the present case admittedly the petitioner submitted the application for claim of refund of the service tax on 28.11.2016 i.e. much after the completion of six months period from 14.05.2016. Thus, from the aforesaid and considering section 103 of the Finance Act, 2014, it can be seen that a policy decision was taken by the Government to restore exemption retrospectively and allowing the refund of the service tax paid during the period between 01.04.2015 to 29.02.2016, provided the refund ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax shall be made within a period of six months from the date on which the Finance Bill 2016 receives the assent of the President. MDP INFRA (India) Pvt Ltd [2019 (29) GSTL 296 (MP)] 14. As regard to substantial question of law at 'B', the said question in given facts of present also does not arise for consideration. The appellant was under legal obligation to deposit the service tax in respect of the service rendered qua non-exempted service. The contentions that it was beyond the control of the appellant to deposit the service tax on exempted service is misconceived. Evidently, the notification No. 12/2012 25/2012 ceased to exist w.e.f. 01/04/2015. The exemption was revived by notification dated 01/03/2016. But since it was prospective in effect, the appellant was not entitled for any exemption, which the appellant was aware of and with open mind and eyes deposited the service tax due with interest. It was only by virtue of subsequent legislation the notification was made effective from retrospective date with the stipulations that refund can be claimed within specific time provided. There was thus no ambiguity nor any dispute as would have prevented the appellant from s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where .. Provided further that the limitation of one year shall not apply where any [duty and interest, if any, paid on such duty] has been paid under protest. 2. If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Section 12E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wordings used in Section 28 of the Customs Act, 1962, a three member bench of Hon ble Supreme Court has in case of Canon India Pvt Ltd [2021- TIOL-123-SC-Cus-LB], held as follows: 9. The question that arises is whether the Directorate of Revenue Intelligence had authority in law to issue a show cause notice under Section 28(4) of the Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted. It is necessary that the answer must flow from the power conferred by the statute i.e. under Section 28(4) of the Act. This Section empowers the recovery of duty not paid, part paid or erroneously refunded by reason of collusion or any willful mis-statement or suppression of facts and confers the power of recovery on the proper officer . The obvious intention is to confer the power to recover such duties not on any proper officer but only on the proper officer . This Court in Consolidated Coffee Ltd. and Another vs. Coffee Board, Bangalore [1980 (3) has held:- 14. ...Secondly, and more importantly, the user of the definite article the before the word agreement is, in our vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods. 13. Where the statute confers the same power to perform an act on different officers, as in this case, the two officers, especially when they belong to different departments, cannot exercise their powers in the same case. Where one officer has exercised his powers of assessment, the power to order re-assessment must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. In our view, this would result into an anarchical and unruly operation of a statute which is not contemplated by any canon of construction of statute. 14. It is well known that when a statute directs that the things be done in a certain way, it must be done in that way alone. As in this case, when the statute directs that the proper officer can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone. We find it completely impermissible to allow an officer, who has not passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise and Customs in terms of the power conferred under Rule 3 of the Central Excise Rules, 2002 has been issued. The preamble to the notification reads as follows: [ TO BE PUBLISHED IN THE GAZETTE OF INDIA , EXTRAORDINARY , PART II , SECTION 3 , SUB-SECTION (i) ] Government of India Ministry of Finance (Department of Revenue ) Notification No. 27 / 2014 Central Excise (N.T.) New Delhi the 16th September, 2014 G.S.R.(E) .. In exercise of the powers conferred by rule 3 of the Central Excise Rules , 2002 and in supersession of Ministry of Finance (Department of Revenue) notification No. 14/2002-Central Excise (N.T.), dated the 8th March, 2002 , published vide number G.S.R.182(E), dated the 8th March , 2002 , except as respects things done or omitted to be done before such supersession , the Central Board of Excise and Customs hereby specifies in the Tables below , the jurisdiction of the Principal Chief Commissioners of Central Excise as specified in column (3) of the Tables I(A) and I(B) , the jurisdiction of the Chief Commissioners of Central Excise as specified in column (3) of the Tables II(A) and II(B) , the jurisdiction of the Principal Commissioners of Central Excise as specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994 (32 of 1994) and the rules made there under, with respect to the jurisdiction of the officers or the territory, as the case may be, specified in column (3) of the said Tables, namely:- 4.14 When the jurisdiction for exercising specific powers which are conferred upon a Central Excise Officer in terms Central Excise Act, 1944 and for which territorial jurisdiction has been assigned as per the above referred to Notification issued under Rule 3 of Central Excise Rules, 2002, is conferred on any other person then again Central Board of Excise and Customs issues a Notification under Rule 3, conferring such power to specified person in the specified territory. One such notification, authorizing officers other than Central Excise Officers, for the purpose of receiving the refund claims in specified jurisdictions is reproduced below: Notification No 30/2007-NT dated 30.07.2007 G.S.R. (E). In exercise of the powers conferred by clause (b) of section 2 of the Central Excise Act, 1944 read with sub-rule (1) rule 3 of the Central Excise Rules, 2002, the Central Board of Excise and Customs appoints the officers specified in column (2) of the table below as Central Excise Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Board of Excise and Customs and by no other authority including this tribunal. No person seeking any remedy under these statue can claim the remedy sought from any officer but has to approach the specified officer having the jurisdiction to Act in that matter. 4.16 A nine member, Constitutional Bench of Hon ble Supreme Court, has in case of Mafatlal Industries [1997 (89) ELT 249 (SC)] considered the Section 11 B of Central Excise, 1944 and has observed as follows in para 70: 70. Re: (II): We may now consider a situation where a manufacturer pays a duty unquestioningly - or he questions the levy but fails before the original authority and keeps quiet. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after an year, five years, ten years, twenty years or even much later, a decision is rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate in such a case. (We must reit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of mistake of law on the basis of a decision of a High Court or the Supreme Court. It is necessary to point out in this behalf that for filing an appeal or for adopting a remedy provided by the Act, the limitation generally prescribed is about three months (little more or less does not matter). But according to the present practice, writs and suits are being filed after lapse of a long number of years and the rule of limitation applicable in that behalf is said to be three years from the date of discovery of mistake of law : The incongruity of the situation needs no emphasis. And all this because another manufacturer or assessee has obtained a decision favorable to him. What has indeed been happening all these years is that just because one or a few of the assessees succeed in having their interpretation or contention accepted by a High Court or the Supreme Court, all the manufacturers/Assessees all over the country are filing refund claims within three years of such decision, irrespective of the fact that they may have paid the duty, say thirty years back, under similar provisions - and their claims are being allowed by courts. All this is said to be flowing from Article 265 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under the Act. It was clarified that even if the authority under the Act holds erroneously, while exercising its jurisdiction and powers under the Act that a transaction is taxable, it cannot be said that the decision of the authority is without jurisdiction. We respectfully agree with the above propositions and hold that the said principles apply with equal force in the case of both the Central Excises and Salt Act and the Customs Act. Once this is so, it is un-understandable how an assessment/adjudication made under the Act levying or affirming the duty can be ignored because some years later another view of law is taken by another court in another person's case. Nor is there any provision in the Act for re-opening the concluded proceedings on the aforesaid basis. We must reiterate that the provisions of the Central Excise Act also constitute law within the meaning of Article 265 and any collection or retention of tax in accordance or pursuant to the said provisions is collection or retention under the authority of law within the meaning of the said article. In short, no claim for refund is permissible except under and in accordance with Rule 11 and Section 11B. An order or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs within one year in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital. In any other case before the expiry of six months from the date of payment of duty and interest. He has to further satisfy that he has not passed on such liability to any other person. The limitation of one year or six months shall not apply where any duty and interest has been paid under protest. It is made clear by the second proviso to section 27 that in case of refund becomes necessary as a consequence of judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year or six months shall commence from the date of such judgment, decree, order or direction. 36. Section 27 of the Customs Act as amended by Finance Act, 2011 provides that any person claiming refund of any duty or interest paid or borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant or Deputy Commissioner of Customs before the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. The provisions of the Central Excise Act, 1944 came up for consideration. The Court has observed: 10. Coming to the question that is raised, there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing its order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia)'s case (supra), that in the absence of an appeal having been filed no refund claim could be made. 8. The words in pursuance of an order of assessment only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an order of assessment to claim the refund. These words do not lead to the conclusion that without the order of assessment having been modified in appeal or reviewed a claim for refund can be maintained. (emphasis supplied) 41. It is apparent from provisions of refund that it is more or less in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise. 42. It was contended that no appeal lies against the order of selfassessment. The provisions of Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days. There is a provision for condonation of delay for another 30 days. The provisions of Section 128 are extracted hereunder: 128. Appeals to [Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been challenged by filing appeal before the Commissioner(Appeals). In this regard, he relied upon various judgments as cited in the submission of the learned Authorised Representative above. The Revenue has mainly relied upon the Larger Bench judgment of the Hon ble Supreme Court in the case of ITC Ltd. (supra). On careful reading of the said judgment, we find that the issue involved in the ITC case is that whether non filing of appeal against assessed Bills of entry will deprive the importer s right to file a refund claim under Section27 of the Customs Act, 1962. In the Customs matter, the appellant needs to file appeal against any decision or order passed by the officer of Custom lower in the rank than the Principal Commissioner of Customs or Commissioner of Customs. An appeal can be filed before the Commissioner (Appeals) in terms of section 128 of the Customs Act. Unlike Service Tax, in customs even though self assessment is done by the assessee, but the same is verified and allowed the clearances by the Custom officer on the Bills of Entry. It is that Bills of entry which is treated as order of assessment and any aggrieved person can file appeal against such assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved that the judgment of Hon ble Rajasthan High Court in the case of Central Office of Mewar Palace Org. Versus Union of India (supra) has been expressly approved by the Hon ble Supreme Court in the case of ITC Ltd. (supra) as the Hon ble Supreme Court stated that High Court judgment is not under provisions of the Customs Act. Therefore, unlike Customs, there is no express provision to file appeal against the self assessment of service tax by filingST-3 return. Therefore, on the ground that appeal against the self assessment was not filed, the refund claim cannot be rejected. 4.19 What has been stated by the Ahmedabad in para 5, is expressly contrary to para 45 of the decision of Hon ble Apex Court in case of ITC, wherein court expressed its disagreement with the reasoning adopted by the Hon ble Rajasthan High Court stating, In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act. The reasoning adopted by the Hon ble High Court and disagreed to by the Hon ble Apex Court, is reproduced below: At the outset, it may be observed, that under the scheme of things, starting f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 27 (1) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal. 4.21 Even before the decision of Ahmedabad Bench of CESTAT, Mumbai bench had already decided the case of Service Tax Refund by applying the ratio of the decision of ITC Ltd., case [Refer Karanja Terminal and Logistics Pvt Ltd 2021-TIOL-76-CESTAT-MUM]. In our view the decision rendered by the Hon ble Apex Court in case of ITC Ltd., is applicable to all the refund claims, filed under the provisions of,- Section 27 of the Customs Act, 1962; Section 11 B of Central Excise Act, 1944; and Section 83 of Finance Act, 1994 read with Section 11 B of Central Excise Act, 1944. 4.22 In the present case we are not concerned with the case of rejection of refund. Hence in our discussions the reference to these decisions in per se, not to suggest the rejection of the refund claims on the ground of non filing of appeal against the assessment done. We have referred to these decisions to establish integral connection between the processing of the refund claim and the assessment made for payment of duty/ t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Kolkata Service Tax, no refund can be made to any person even if is admissible as per Section 103 of the Finance Act, 1994. Since the ST-3 returns making self assessment for the payment of Service Tax, were filed by the concerned service provider in the jurisdiction of the Commissioner Service Tax Kolkata therefore only that Assistant/ Deputy Commissioner can have jurisdiction to process the refund claims, if the same were filed by any person claiming that refund. 4.24 It is settled principle in law that any exemption from tax is an exception and need to be claimed by the person who wish to avail the benefit of this exemption. The benefit of exemption needs to be claimed by the concerned person in the manner as provided in law. A five member constitutional bench of Hon ble Apex Court, in case of Hari Chand Shri Gopal [2010 (260) E.L.T. 3 (S.C.)] held as follows: 22. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the essence or the substance of the requirements. Like the concept of reasonableness , the acceptance or otherwise of a plea of substantial compliance depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleaded if a clear statutory prerequisite which effectuates the object and the purpose of the statute has not been met. Certainly, it means that the Court should determine whether the statute has been followed sufficiently so as to carry out the intent for which the statute was enacted and not a mirror image type of strict compliance. Substantial compliance means actual compliance in respect to the substance essential to every reasonable objective of the statute and the court should determine whether the statute has been followed suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority. Only if CT-2 Certificate is obtained, the excisable goods could be removed. Form RG16 Register and the details to be furnished in Form RT11 are also statutory in nature, which relate to the substance and essence of the requirements under Chapter X. Indisputedly, those requirements had not been complied with. 26. The respondents have laid great emphasis on maintenance of some statutory registers and filing of periodical returns at the recipient unit, so as to take the shelter under the doctrine of substantial compliance for remission of duty. Respondents pointed out that they had identical columns in the registers kept at the recipient end, hence, the requirement of maintaining separate register at the supplier end and the requirements of Chapter X was substantially complied with. It may be noted that RG-16 Register prescribed was specific to Chapter X with the sole intention of maintaining separate accounts for receipt, issue and usage of duty free remitted inputs received from the supplier unit. Similarity of columns and the details furnished therein cannot be considered as substitute for not maintaining of RG-16 Register or other registers for remission of duty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im should e considered and allowed and if any proceedings are to be initiated against the service provider they can be initiated separately at the Service Provider end. We are not in position to agree with the said submissions of the appellant, in view of the decision of Hon ble Apex Court in case of Hari Chand Shri Gopal, supra. Further the Service Provider independently cannot be faulted if he has paid the service tax as applicable without availing the benefit of this exemption, without adhering to the Rule 6. Admissibility of an exemption under a taxing statue needs to be determined qua the person making the payment of tax to the exchequer and not qua the purchaser/ recipient of goods/ services. 4.26 If the Service Provider has paid the Service Tax even in respect of the goods subsequently exempted by way of Section 103, the appellants are/ were entitled to take CENVAT Credit of the Service Tax paid. If they have availed the credit the same could not have been questioned in view of the decision of Hon ble Bombay High Court in case of Anjikya Enterprises, supra. The jurisdictional authorities with whom the appellants is registered without an iota of doubt are concerned with the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 173S of the erstwhile Central Excise Rules, 1944] by an assessee or even a person who has borne the duty incidence, to the Deputy/Assistant Commissioner of Central Excise having jurisdiction over the factory of manufacture. 4.28 The issue under consideration before the Tribunal in the case of Indian Farmer Fertilizer Cooperative Ltd [2014-TIOL-118-CESTATDEL], was in respect of the admissibility of the refund claim filed by the service recipient. The tribunal has decided the issue following the decision of Hon ble Apex Court in case of Mafatlal Industries [1987 (89) ELT 247 (SC)] para 90, held that refund claim filed by the service recipient is admissible. The relevant paragraphs from that decision are reproduced below: 4. The appellant initially applied for refund to the service tax authorities at Navi Mumbai. By the order dated 05.04.2011, the Assistant Commissioner, Service Tax Division-V rejected the refund claim on the ground that the application for refund should be made before the Commissionerate within whose jurisdiction the applicant operates, on the principle that the person who has borne the incidence of duty was required to file a refund claim, before its jurisdictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Commissioner (Appeals) distinguished the clearly applicable law declared in Mafatlal Industries, as to the scope of Section 11B of the 1944 Act, without any analysis whatsoever of either the facts, the circumstances or the ratio of the judgment of the Constitution Bench. We are constrained to record our strong disapproval of such irrelevant and inappropriate conduct of statutory authorities, particularly when exercising quasi-judicial jurisdiction, in disregarding the clearly declared law, which is a binding precedent, in particular in the context of Article 141 of the Constitution. As a consequence of such vagrant analysis by the ld. Commissioner (Appeals), the appellant herein has been put to avoidable litigation trauma in preferring this appeal to this Tribunal and an unwarranted appellate burden as well. 4.28 The appellant in case of Indian Farmer Fertilizer Cooperative Ltd, supra did not challenged the order dated 5.04.2011 rejecting the refund claim before Assistant Commissioner, Service Tax Division-V but challenged the order dated 16.04.2012 of the Commissioner (Appeal), in case of the refund claim filed by them before Assistant Commissioner Central Excise Bareilly. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred an appeal which was also rejected by the ld. Commissioner (Appeals), Central Excise, Raipur by the impugned order dated 09.10.2013. It requires to be noticed that the impugned order allowed the appellant's contention on the aspect of the bar of limitation since the appellant had filed its initial refund claim within the prescribed period, before the Deputy Commissioner, New Delhi on 21.03.2012. The ld. appellate Commissioner however concluded that the refund claim cannot be entertained since the provider of the service was within the jurisdiction of the Delhi Commissionerate and therefore the refund claim should be entertained by the Delhi Commissionerate and not the Bilaspur Commissionerate. 6. The fact that the recipient of the service is also entitled to file a claim for refund is no longer res-integra. The issue stand concluded by the Constitution Bench decision in Mafatlal Industries Limited vs. Union of India - 1997 (89) ELT 247 (SC) . This decision was followed in Indian Farmer Fertilizer Co-op. Ltd., vs. CCE, Meerut-II - 2014 (35) STR 422 (Tri. Del.) . If the appellant which is a recipient of a service which is admittedly not taxable files a claim for refund wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provide for grants being made in favor of consumer organizations for being spent on welfare of consumers. But, this is perhaps for the reason that Clause (e) of the proviso to sub-section (2) of Section 11B does provide for the purchaser of goods applying for and obtaining the refund where he can satisfy that the burden of the duty has been borne by him alone. Such a person can apply within six months of his purchase as provided in Clause (e) of Explanation-B appended to Section 11B. It is, therefore, not correct to contend that the impugned provisions do not provide for refunding the tax collected contrary to law to the person really entitled thereto. A practical difficulty is pointed out in this behalf by the learned Counsel for appellants-petitioners : it is pointed out that the manufacturer would have paid the duty at the place of removal or clearance of the said goods but the sale may have taken place elsewhere; if the purchaser wants to apply for refund - it is submitted - he has to go to the place where the duty has been paid by the manufacturer and apply there. It is also pointed out that purchasers may be spread all over India and it is not convenient or practicable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim before the Assistant Commissioner, in jurisdiction where he is registered, tribunal has in case of Oswal Chemical and Fertilizers [2003-TIOL-170-CESTAT-DEL] observed as follows: 6. It must be remembered that demand and refund are merely two sides of the same coin namely assessment of goods to Central Excise duty. The goods in this case are naptha . These have been subjected to excise duty at the factory in which the same were manufactured namely the refinery. In this case, it is to be noted that, the said naptha was manufactured by M/s I.O.C. The same was despatched to M/s. BPCL on payment of full duty. The appellants had purchased the said naptha from M/s. BPCL on payment of a price which included full excise duty. The conclusion as to whether the payment of duty by the refinery, in respect of the consignments cleared to the appellants was in excess of the payment due under the law or otherwise has to be arrived at by the Central Excise officers in charge of the refinery. The learned Commissioner (Appeals) in his findings has correctly held that M/s. IOC, the manufacturer could not have had the knowledge of the intended use of a portion of naptha that was to be eventually sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commissioner in charge of the appellant's factory cannot sit in judgment over the correctness or otherwise of payment of duty made by the naptha manufacturer. Therefore, the AC Central Excise in charge of appellant's factory has no jurisdiction to entertain the refund claim in question. The claim has, therefore, been correctly rejected on the ground of locus standi. This order of tribunal was appealed before the Hon ble Apex Court has dismissed the appeal [2015 (318) ELT 617 (SC)] filed by the Appellant holding that the refund claim was filed beyond the period of limitation. On the issue of jurisdiction, however, Hon ble Apex Court categorically held that the Assistant Commissioner having jurisdiction over the refinery from where the goods were cleared on payment of duty had jurisdiction to decide on the refund claim. The observations made by the Hon ble Apex Court are reproduced below: 9. The second reason given by the CESTAT, as mentioned above, is that the appellant had preferred this application before a wrong authority. Here we find that the appellant had filed the refund claim before the Central Excise Authorities at Durgapur. The appellant had purchased the materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ld. Advocate appearing for the appellant submits that they are registered with Commissionerate-I, has been filing their returns with Commissionerate-I and as such filed the refund claim with Commissionerate-I only. As such the refund claim was filed with the Commissionerate having jurisdiction over them. If Commissionerate-I was not having jurisdiction, it was for the authorities to say so and not to decide their refund claim. He also submits that the refund has already been sanctioned to them and the division of the Commissionerate is only for ease of working and the department is one only and the refund actually sanctioned by the authorities cannot be rejected on the hyper technical grounds. 5.1 After hearing the Ld. DR, I find that there is no dispute about the facts and nor about legal issue and the appellant's entitlement to the refund of the accumulated Cenvat credit. The only ground on which the Commissioner (Appeals) has set aside the order of the lower authority sanctioning refund is that the officer was not having jurisdiction in as much as the refund should have been filed with Commissionerate-III. In the absence of any dispute about legality of the refund claim or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the statue to confer jurisdiction upon any authority under the Act, to perform the duties/ exercise those powers which have not been conferred upon that authority in terms of the notification issued under Rule 3 of Service Tax Rules, 1994 read with Rule 3 of Central Excise Rules, 2002. 4.36 We are also not inclined to agree with the submissions made by the Appellant, that the Supplementary Instructions, issued by the Board and referred by the Commissioner (Appeal) while rejecting the appeal filed by them shall not apply to cases of refund under Chapter V of the Finance Act, 1994, because under Central Excise every factory of the manufacturer is registered as separate entity, whereas Service Tax law provides for the centralized registration. The argument should fall as the service provider and service recipient in the present case are not covered by the same centralized registration. Centralized registration is qua the different premises of the same person from where he provides the taxable service. Centralized registration is not in respect of different persons/ entities, who are in respect of particular transaction bound by the relationship of service provider and service reci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments providing for levy, assessment, recovery and refund of duties, imposed thereunder. Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil court. 5.1 In view of discussions as above we do not find any merits in the appeal filed and dismiss the same. (Pronounced in open court on 28 June, 2021) (Sd/-) Sanjiv Srivastava Member (Technical) (Sd/-) (Dr. Suvendu Kumar Pati) Member (Judicial) Difference of Opinion PER: DR. SUVENDU KUMAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch an application can only be filed before the Deputy Commissioner/Assistant Commissioner of Central Excise where the tax was collected despite the fact that plethora of decisions exist to the contrary. He even had gone to the extent of distinguishing some of the factual context of those decisions with the case in hand, which can be dealt subsequently in the later part of this order as at this stage my observations on the factual backdrops is on a different direction which I consider to place on record at the first instance. 8.1 There are two legal issues involved concerning procedural requirements to be followed by the adjudicating authority and the Commissioner (Appeals). First, there exist no provision that authorized the adjudicating authority to return the claim application without taking a decision on it. Second, Commissioner (Appeals) empowerment to entertain such a covering letter intimating return of refund application as a decision or order and entertaing an appeal against such letter correspondence. I have not come across any such provision in the indirect taxation statute/rules but it is a common knowledge that when there is no specific provision available, reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r from the Additional Accounts Officer concerning payment of duty was acknowledged, which procedure has become absolate in this centralised filing system. 10. It would be inappropriate to depart from the observation made by my Learned Brother in para 4.29 and 4.30 of his order since it would look like sitting in an appeal over the decision arrived by the other Member of the Bench as his reasoning is available with me. However going by the case of Mafatlal Industries that has highlighted the practical difficulty in filing a refund claim by a purchaser at the place of removal namely at the factory site it can be observed that such a proposition was argued before the Court without a legal provision backing the same and Hon'ble Apex Court had refused to accept the submissions as valid proposations to set aside 1991 Amendment Act. As such when no provision is available in the statute or in the Amended Act that would stipulate filing of refund claim at the place of removal of the goods by the purchaser, analysis of the same to counter the argument of the learned Counsel for the appellants- petitioners would never act even as an orbiter dicta under the rule of precedent. Likewise, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a nut shell, are that the appellants herein M/s. Nhava Sheva (India) Gateway Terminals Pvt. Ltd., during the material period, had entered into an agreement dated 29.09.2014 with M/s. ITD Cementation India Ltd. (M/s. ITD), Kolkata for receiving construction services at Nhava Sheva Port. Construction services pertaining to a port was exempted from payment of service tax in terms of Sr. No.14(a) of the Notification No. 25/2012 dated 20.06.2012. However, w.e.f. 01.03.2015, vide Notification No. 6/2015-ST dated 01.03.2015, the said exemption provided under the earlier notification dated 20.06.2012 was withdrawn, by omitting the words an airport, port or . Owing to the reason of withdrawal of the exemption, the service provider M/s. ITD had started collecting service tax from the appellants and paid the same into the Government exchequer. The Finance Act, 2016 has amended the Finance Act, 1994 by way of insertion of Section 103 therein. As a result of addition of the said section, the exemption from payment of service tax, earlier provided under the Notification dated 20.06.2012 was restored in respect of services provided by way of construction pertaining to the port for the period 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble President of the Tribunal, to me as a Third Member, for resolving such dispute. Points of difference between the learned Member (Technical) and learned Member (Judicial) of the Bench have already been set out in the preceding paragraphs. However, for ease of reference, the issues of difference, views expressed by both the learned Members and relevant paragraphs recorded in the Interim Order No. 04/2021 dated 28.06.2021 are set out in a tabular form, as under:- Sl. Issue/ points of difference Views expressed by the Member (Technical) relevant para in the interim order Views expressed by the Member (Judicial) relevant para in the interim order 1. Whether the Deputy Commissioner, Division-9, Service Tax-VII, action in returning the refund claim that has been upheld by the Commissioner (Appeals) is to be upheld by the CESTAT as opined by Member (Technical) or is to be set aside as opined by Member (Judicial) Deputy Commissioner could have either transferred the refund claim to the officer having jurisdiction or could have returned back the papers to the claimant. [Para 4.33, page 54] There exists no provision that authorizes the adjudicating authority to return the refund claim, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49 and 50] The Supreme Court in Mafatlal Industries had refused to accept the submissions (qua practical difficulty in filing a refund claim by a purchaser at the factory site) to set aside the 1991 Amendment Act since the said arguments were made without a legal provision backing the same. When the statute does not stipulate filing of a refund at the place of removal of the goods by the purchaser, analysis of the same to counter the argument of the Appellant is erroneous (as the same would not act even as obiter dicta under the rule of precedents) [Para 10, page 62] In view of the observation of the Rajasthan High Court in Chambal Fertilisers that it is always better to confine the claim for refund with the jurisdictional commissioner, holds that the Tribunal is not inclined to follow the earlier orders of the Tribunal holding that the service recipient has the option to file refund claim at either jurisdiction. [Para 4.30, page 51] Rajasthan High Court in Chambal Fertilisers was in complete agreement with the view taken by the Tribunal. A mere observation that it is always better to confine the claim for refund with the jurisdictional commissioner has in no way reversed the findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein below:- 103. (1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), in respect of services provided by way of construction, erection, commissioning or installation of original works pertaining to an airport or port, under a contract which had been entered into before the 1st day of March, 2015 and on which appropriate stamp duty, where applicable, had been paid before that date, subject to the condition that Ministry of Civil Aviation or, as the case may be, the Ministry of Shipping in the Government of India certifies that the contract had been entered into before the 1st day of March, 2015. (2) Refund shall be made of all such service tax which has been collected but which would not have been so collected had sub-section (1) been in force at all material times. (3) Notwithstanding anything contained in this Chapter, an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of the President. 13.2 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly, are discussed in the following sub-paragraphs. 14.2 The provision for claim of refund of Central Excise duty is contained in Section 11B of the Act of 1944. Section 83 of the Act of 1994 mandates that certain provisions of the Act of 1944 shall apply, so far as may be, in relation to service tax, as they may apply in relation to duty of excise. For the purpose of refund of service tax, Section 83 of the Act of 1994 has borrowed the provisions of Section 11B from the Act of 1944. Therefore, for claim of refund of service tax, the provisions of Section 11B ibid shall apply mutatis mutandis. The said statutory provision is quoted herein below: Section 11B. (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such instructions, the Under Secretary to the Government of India has clarified that if the readers find any instruction in the said Manual, which are contrary to the provisions of the Central Excise Act, 1944 and the rules made thereunder, then such Act and Rules shall prevail . Since, there is no ambiguity in reading of Section 11B ibid, it cannot be said that as per the Supplementary Instructions, the jurisdiction to deal with refund application lies with the authority at the service provider s end alone. 14.5 On bare reading of the provisions of Section 11B of the Act of 1944, it would transpire that the designated authority, before whom the refund application is required to be filed, has only mentioned in the said statute, as the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise . The provisions of the said statute do not provide any thing further, as to who would be the jurisdictional designated authority, before whom the said refund application is to be preferred i.e., whether before the designated authority, having jurisdiction over the business premise(s) of the service recipient; or, the authority at the service provider s end. Since, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the applicants, had stated in his letter dated 08.12.2016 that the service tax, for which the refund application was preferred, had not been paid by the appellants into the account of Service Tax-VII Commissionerate, Mumbai; but the same had been paid by the service provider at Service Tax, Kolkata Commissionerate; and thus, the refund claim cannot be entertained at his end. I find that such interpretation placed by the authority below is not in consonance with the statutory provisions. Rule 6 of the Rules of 1994, deals with the issue of payment of service tax by an assessee. It has been mandated that the service tax shall be paid to the credit of Central Government. In context with the manner and mode of deposit of indirect taxes into the Central Government account, the Principal Chief Controller of Accounts in the CBEC, has prepared the Manual of Accounting of Indirect Taxes . In Chapter 4 of the said Manual, different classifications have been made for revenue collection and accounting thereof. The Major Heads provided for receipt of Customs duties, Central Excise and Service Tax are classified under the Heads 0037, 0038 and 0044 respectively. The facts are not under dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h fact has not been disputed by the department. Thus, reliance on these judgements is not relevant for consideration of the present dispute. 17.2 In paragraphs 4.8 to 4.10 of the Interim Order, reference has been made by the learned Member (Technical) to the judgement of the Hon ble Supreme Court, in the case of Canon India Pvt. Ltd. Vs. Commissioner of Customs-2021 (376) E.L.T. 3 (SC), to justify that the phrase Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise , used in Section 11B of the Act of 1994 is to be interpreted as the proper officer , with whom the ST-3 returns, in respect of which the refund claim has been made, was filed. In this context, he has placed reliance on the said judgment to derive the ratio that the phrase Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise , is preceded by the definite article i.e., the and not the indefinite articles a or an . In the Civil Appeal No. 1827 of 2018 filed by Canon India Pvt. Ltd. (supra) before the Hon ble Supreme Court, the issue was whether, after clearance of the goods upon availment of duty exemption provided under notification, can the proceedings be initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such claim should be filed with the proper officer, having jurisdiction over the service provider. Further, Section 103(3) of the Act of 1994 also starts with a non-obstante clause and puts only condition that the refund application should be filed within six months. Thus, there is no other condition imposed, as to the specific officer, before whom the refund claim should be filed with. 17.5 The appellants in the present case have filed their refund claim before their own jurisdictional Service Tax divisional office, where they used to file the service tax returns. Even Section 11B of the Act of 1944, which has been strongly relied upon in the Interim Order, also does not mandate that the claim should be filed before the service provider's jurisdictional officer alone. In fact, the principle laid down in Canon India (supra) would support the appellant's case inasmuch as in the event of any erroneous grant of refund, the proper officer to issue the show cause notice for recovery of such erroneously granted refund would be the jurisdictional officer at the appellant s end, and not the jurisdictional officer at the service provider s end. Thus, as per the reasoning given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Member (Technical), to emphasize that in order to be eligible for refund, one need to adhere to the provisions of Section 27 of the Customs Act, 1962 strictly. In the present case, interpretation of the provisions of Section 27 (supra) is not in question and there is no dispute that the appellants have filed the refund claim within 6 months of the Presidential assent to Section 103 of the Act of 1994 and as such, is within the schedule time frame. Thus, recourse cannot be had to the provisions of 1872 Act or the 1963 Act. 17.8 Further, in Paragraph 4.22 of the Interim Order, reference has been made by learned Member (Technical) to the judgments of (i) Kerala State Electronics Corporation vs Collector of C. Ex. Kochi, 1996 (84) ELT 44 (Tribunal); (ii) Commissioner of Central Excise Customs vs MDS Switchgear Ltd, 2008 (229) ELT 485 (S.C.) and (iii) Commissioner of Central Excise, Pune-III vs Ajinkya Enterprises, 2013 (294) ELT 203 (Bom.), to hold that while examining the admissibility of cenvat credit to the recipient, the officer so examining cannot question the assessment made at the time of provision of service or sale of goods. I am of the opinion that the cited judgem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance is warranted, then the jurisdictional officer at the appellant s end ought to have sought for such report of compliance, either from the appellants or from the jurisdictional officer at the service provider s end. Such instances of the jurisdictional officer, seeking compliance from his counterpart in other jurisdictions, are not unknown to the field formation. For example, in the case of movement of goods under Chapter X procedure, in the Central Excise regime, or in the case of variance of credit under assessment, in terms of Rule 57E of the erstwhile Modvat Credit Rules, such compliance was often obtained. Therefore, in the absence of authority to seek such compliance, denial of the benefit of refund at the appellant's end, is not at all justified in law; as it amounts to adding a condition to an Act, legislated by the Parliament, which is not permitted. In any case, denial of the benefit of refund claim by the authorities below, is not in context with non-compliance of the requirements of Rule 6 of the Rules of 2004 by the service provider and thus, the Tribunal at this stage, cannot make out a new case for denial of the benefit of refund, which was never been ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led principle of law, that the judgement is the ratio on what it decides and not what can be deduced from it. It is to be noted from the finding reproduced in paragraph 4.29 of the Interim Order that those are the comments of the Hon ble Court, while negating the submissions made before them and not the ratio of the judgement on the issue before the Hon ble Court. 17.13 In the case of Chambal Fertilizers Chem. Ltd., vs Commr. of C. Ex. S.T., Udaipur 2017 (52) STR 329 (Tri-Del.), the Tribunal had held that there is no bar in filing refund claim in the jurisdiction of service recipient and this order of the Tribunal has been upheld by the Hon'ble Rajasthan High Court [2018(15) GSTL 6576 (Raj.)]. However, Member (Technical) has interpreted such judgement in the manner that the Tribunal s order cannot be accepted. On reading of the said judgement of the Hon ble Rajasthan High Court, it transpires that Government was given with the suggestion that if the assessee is allowed to file refund claim at two offices, it may lead to wastage of time in verification of the details of payment made and therefore suggested that filing of the claim can be kept with the office of the jurisdictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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