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TMI Blog2024 (11) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order which was passed relying on the jurisdictional High Court judgment in the case of SAL Steel Limited. Accordingly, following the Hon ble Gujarat High Court decision in the case of SAL Steel Limited, the impugned order is upheld and the Revenue s appeal is dismissed Thus, as the ocean freight is not liable to service tax, appellant is eligible for the refund only on the ground of the non taxability of the ocean freight itself. Appellant is eligible for the refund. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C L MAHAR, MEMBER (TECHNICAL) Shri Rahul Patel, Chartered Accountant appeared for the Appellant Shri Rajesh R Kurup, Superintendent (AR) appeared for the Respondent ORDER The issue involved in the present case is that whether the Ld. Commissioner (Appeals) is right in remanding the matter of refund amounting to Rs.5,03,71,491/-to examine the refund under Notification No.12/2013- ST dated 01.07.2013 applicable to the SEZ units without giving conclusive finding on the issue of non taxability of service of ocean freight which is covered by the Hon ble Gujarat High Court judgment in the case of SAL Steel Limited on the ground that the matter is pending before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. Counsel that if the service i.e. ocean freight itself is held non taxable then the question of processing the refund under Notification No.12/2013-ST does not arise. We find that Ld. Commissioner (Appeals) while remanding the matter given the finding which is as under:- 7. Regarding the issue of refund amounting to Rs.5,03,71,491/- in respect of the service tax paid on Ocean Freight under reverse charge, it is observed that the adjudicating authority has rejected the refund claim on the grounds that in terms of the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. UOI-1997 (89) ELT 247 (SC) the only way to get refund of taxes held to be unconstitutional is by filing Writ Petition or Civil Suit. 7.1 It is observed in this regard that the appellant has filed the claim for refund under Notification No 12/2013 ST dated 01.07.2013. In terms of the said Notification, services received by a unit located in the SEZ or Developer of SEZ, and used for authorized operation are exempted from the whole of the service tax in terms of Notification No 12/2013-ST dated 01.07.2013. If the admissible exemption is not claimed ab inito, refund of the service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the levy of service tax on ocean freight itself was held unconstitutional and thus, the ocean freight is not liable to service tax the refund claim ought to have been decided on this issue itself on the basis of Hon ble Gujarat High Court judgment in the case of SAL Steel Limited. In view of the non levy of service tax on ocean freight, there is no question of processing the refund claim under Notification No.12/2013- ST. The said provision will come into picture only when the service received by SEZ unit is statutorily service tax paid and therefore, the said service tax is refundable under Notification No.12/2013-ST. however, in the present case, we are of the clear view that since the service of ocean freight was held by the Hon ble Jurisdictional High Court of Gujarat as unconstitutional and appellant was not liable to pay service tax on ocean freight, they are eligible for refund claim without following the refund process under Notification No.12/2013-ST. 4.2 As regard the decision of SAL Steel Limited (supra) by the Hon ble High Court of Gujarat the same is extracted below:- 58. In view of the aforesaid discussion, the writ application succeeds and is hereby allowed. The Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards the Revenue s appeal pending before the Hon ble Supreme Court against the aforesaid decision, I find that there is no stay against the said High Court judgment. In view of this position, I find no infirmity in the impugned order which was passed relying on the jurisdictional High Court judgment in the case of SAL Steel Limited. Accordingly, following the Hon ble Gujarat High Court decision in the case of SAL Steel Limited, the impugned order is upheld and the Revenue s appeal is dismissed. Cross objection is also disposed of. 4.4 The above decision of this Tribunal has been upheld by dismissing the Revenue s Appeal which is reproduced below:- ORDER Delay condoned. We have heard learned counsel for the appellant. The Civil Appeal is dismissed. Pending application(s), if any, shall stand disposed of. 4.5 In the recent judgment of the Division Bench of this Tribunal in the case of Synergy Seaports Pvt Ltd on the issue of refund in the light of the Hon ble Gujarat High Court in the case of SAL Steel Limited the following judgment was passed:- 4. We have carefully considered the submissions made by both the sides and perused the records. 4.1 We find that the refund application was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CGST Act, 2017 deals with refund claim for the CENVAT credit, any duty etc. for the refund claims filed before introduction of GST laws and also after the introduction of GST laws. It further states that except the provisions of sub section (2) of Section 11B of the Central Excise Act, 1944 no other provisions would apply to such refund claim. We also find force in the reliance placed by Ld. Counsel on the decision of Hon ble Bombay High Court in case of Combitic Global Caplet Pvt. Ltd. reported in 2024 (6) TMI 498 Bombay High Court wherein it is observed as under: 11. In our view, Section 142(3) of the Act is very clear in as much as, it says every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law ...... and any amount eventually accruing .... shall be paid in cash .. . It is very widely worded in as much as it uses the expression CENVAT credit and also any other amount paid . Even if, we take it that petitioner has made voluntary deposit, that amount has to be shown as CENVAT credit in the account of petitioner. In the alternative, it would cert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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