IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. IV
Appeal No. ST/87114/13
(Arising out of Order-in-Appeal No. PVR/92/NGP/2013 dated 19.02.2013 passed by the Commissioner of Central Excise & Service Tax (Appeals), Nagpur).
M/s Central Mine Planning & Design Institute Ltd.
Commissioner of Central Excise, Nagpur
Ms. Shraddha Kapoor, Advocate for appellant
Shri B.K. Iyer, Supdt. (AR) for respondent
SHRI RAJU, MEMBER (TECHNICAL)
Date of Hearing: 24.02.2017
Date of Decision: 17.03.2017
This appeal has been filed by M/s Central Mine Planning & Design Institute Ltd. against rejection of a refund claim.
2. Learned Counsel for the appellant argued that they were performing certain jobs for various clients and the rates for performing those jobs were not final but provisional. The same were finalized after the audit of the accounts and as a consequence, the rates were revised to a lower value. The appellant had, however, paid duty on the higher value without resorting of provisional assessment. The claim of refund has been rejected by the original adjudicating authority on the ground that provisional assessment was not resorted to by the appellant. The Order-in-Original further observed that ST-3 returns filed by the appellant shows the duty, which they have paid and, therefore, there is no question of refund. On the issue of unjust enrichment the Order-in-Original does not observe anything on the ground that no reply in respect of other issue regarding admissibility has been given by the appellant. The order of Commissioner (Appeals) also reiterates the same grounds for rejection of refund claim. Learned Counsel also relied on the decision of Tribunal in their own case where in similar circumstances, the refund was allowed relying on Rule 6(3) of the Service Tax Rules. Commissioner (Appeals) has however rejected the contention regarding Rule 6(3) of the Service Tax Rules, 1994 observing that the appellant never received any money from their service receiver and there is no question of issue any credit note in the absence of receipt of payment.
3. Learned AR relied on the impugned order.
4. I have gone through the rival submissions. I find that the impugned order observed that duty have been paid on following dates: -
Challan No. Challan date Period covered (as stated in Challan) Service Tax paid (in Rs.)
01678 04.05.2010 April, 2010 50,82,150/-
00327 03.09.2010 August, 2010 41,78,861/-
03095 03.11.2010 October, 2010 4,74,963/-
01739 06.12.2010 November, 2010 84,38,027/-
03165 04.02.2011 December, 2010 46,85,268/-
00560 30.06.2011 Jan, Feb, March, 2011 41,75,997/-
Original refund claim has been filed on 23.8.2011 and thus the period upto April, 2010 is beyond the limitation prescribed under Section 11B of Central Excise Act, 1944 made applicable to Service Tax matters vide Section 83 of the Finance Act, 1994. The claim in so far as it relates to the period covered under duty paying challan dated 4.5.2010 is rejected.
4.1 In so far as rest of the claim is concerned, it is open to the appellant to claim the refund if the duty has been paid wrongly in excess. It is seen that it has been acknowledged by the lower authorities that the amount received by the appellant is the consideration for the provision of service is less than the amount on which the appellant has paid the Service Tax. If that being so, it is open to the appellant to claim refund under Section 11B of the Central Excise Act made applicable to the Finance Act, 1994 and the same cannot be denied. However, the said claim needs to be tested on the ground of unjust enrichment. I find that lower authorities have not examined the issue of unjust enrichment and, therefore, the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh adjudication in light of the observations made herein above.
5. The appeal is allowed by way of remand.
(Pronounced in Court on 17.03.2017)