Custom, Excise & Service Tax Tribunal
Chemoil Adani Pvt Ltd vs C.S.T.-Service Tax - Ahmedabad on 10 January, 2018
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Zonal Bench 2nd Floor, Bahumali Building, Nr Girdharnagar Bridge, Asarwa Ahmedabad 380 004 Sr No Appeal No Arising out of Date Passed by Appellant Respondent1
ST/10413/2014 OIA-AHM-SVTAX-000-APP-234-13-14 12/11/2013 Commissioner of Service Tax-SERVICE TAX - AHMEDABAD Chemoil Adani Pvt Ltd C.S.T.-Service Tax - Ahmedabad 2 ST/11181/2014 OIA-AHM-SVTAX-000-APP-234-13-14 12/11/2013 Commissioner of Service Tax-SERVICE TAX - AHMEDABAD C.S.T.-Service Tax - Ahmedabad Chemoil Adani Pvt Ltd 3 ST/10414/2014 OIA-AHM-SVTAX-000-APP-246-13-14 19/11/2013 Commissioner of Service Tax-SERVICE TAX - AHMEDABAD Chemoil Adani Pvt Ltd C.S.T.-Service Tax - Ahmedabad 4 ST/11180/2014 OIA-AHM-SVTAX-000-APP-246-13-14 19/11/2013 Commissioner of Service Tax-SERVICE TAX - AHMEDABAD C.S.T.-Service Tax - Ahmedabad Chemoil Adani Pvt Ltd 5 ST/10458/2014 OIA-208/2013-STC/SKS/COMMR-A-/AHD 15/10/2013 Commissioner of Service Tax-SERVICE TAX - AHMEDABAD C.S.T.-Service Tax - Ahmedabad Chemoil Adani Pvt Ltd 6 ST/11297/2014 OIA-AHM-SVTAX-000-APP-287-13-14 24/12/2013 Commissioner of Service Tax-SERVICE TAX - AHMEDABAD Chemoil Adani Pvt Ltd C.S.T.-Service Tax - Ahmedabad 7 ST/11832/2014 OIA-AHM-SVTAX-000-APP-287-13-14 24/12/2013 Commissioner of Service Tax-SERVICE TAX - AHMEDABAD C.S.T.-Service Tax - Ahmedabad Chemoli Adani Pvt Ltd 8 ST/11298/2014 OIA-AHM-SVTAX-000-APP-296-13-14 31/12/2013 Commissioner of Service Tax-SERVICE TAX - AHMEDABAD Chemoil Adani Pvt Ltd C.S.T.-Service Tax - Ahmedabad Represented by For Applicant(s) : Shri H Modh, Shri Amit Laddha, Advocates For Respondent(s) : Shri S Chitkara, Authorised Representative CORAM :
Shri M V Ravindran, Hon'ble Member (Judicial) Date of Hearing / Decision : 10/01/2018 ORDER No. A/10189-10196/2018 Per : Shri M V Ravindran, All these appeals are filed against a common issue, hence are being disposed by a common order.
2. Heard both sides and perused the records.
3. On perusal of the records, it transpires that the issue regarding rejection of refund claims filed by the assessee appellant M/s Chemoil Adani Pvt Ltd in respect of Service Tax paid by the service providers for the services rendered in authorized operations of SEZ area. The said refund claim have been basically rejected on the ground that they were filed beyond the period of limitation as also on the ground that they were not required for authorized operations.
4. As per Notification No 9/2009-ST dt 3.3.2009 an assessee situated in SEZ area is eligible to avail the services provided to them by claiming of exemption or by claiming refund to the Service Tax paid by the service providers in respect of the Authorised operations in the SEZ area. Notification No 9/2009-ST dt 3.3.2001 has described the procedure vide which refund claim needs to be filed. The said Notification prescribes time limit of 6 months for filing refund claim from the date or from the date of payment of Service Tax to the service provider. The said Notification has been superseded by Notification No 17/2011-ST dt 1.3.2011 wherein the time for filing the refund claims of the Service Tax paid has been extended to one year.
5. The Ld. Counsel submits that in all these cases the Adjudicating Authority has passed an order adjudication order in the year 2012, when Notification No 17/2011-ST dt 1.3.2011 was in force. It is his submission that this Tribunal in the case of APK Identification vs CCE, Noida 2012(27)STR.20 (Tri Del) specifically held that the refund claims whether they are filed in time or not is to be decided upon as per time limit mentioned in Notification No 17/2011, in respect of cases are pending on the date of adjudication.
6. I notice from the records that the delay in fling refund claims before the authorities is 14 96 days from the date of payment of Service Tax. I find strong force in the contention raised by the Ld Counsel that the Adjudicating Authority has decided all these refund claims after 1.3.2011 on this date Notification No 17/2011-ST came into existence and superseded notification 9/2009-ST. Ld. counsel was correct in stating Tribunal in the case of K P Identification (supra) considered the issue. I reproduce the ratio of the Tribunal. Considered the arguments of both sides. I do not agree with the argument that the time-limit under Notification dated 1-3-2011 cannot be made applicable to the claims filed before that date and pending on that date. I also consider the fact that even under the earlier notification, the Deputy Commissioner had power to condone the delay. The delay involved was only 17 days and when a public authority is given any power, he is expected to exercise it unless there is a reason for not exercising such power. No reason has been recorded in the impugned order. In the facts and circumstances of the case, I consider that this a case where he should have considered the claim as per the proviso of Notification No. 17/2011-S.T, dated 1-3-2011 which was in force on the date when he issued the order. I hold that the claims are not time-barred and the matter is remanded to the adjudicating authority to decide the case afresh, on the merits of the claim.
7. Respectfully following the above reproduced ratio, I hold that all these claims are within time limit and the matter has to be remitted back to he Adjudicating Authority to decide the case afresh for concluding the issue on the merit of the claim.
8. On a specific query from the Bench as to why Revenue is also in appeal against the said order, the Ld DR submits that Revenue is aggrieved by the decision of the First Appellate Authority on the ground that he has remanded the matter back to the Adjudicating Authority which he should not have done so, as he has no power to do so.
9. In sum, appeal of assessee to the extent it is contested on the rejection of the refund claims for dismissal on limitation, need to be remitted to Adjudicating Authority to reconsider the issue on merits, as Tribunal is holding time limit as per Notification No. 17/2011-ST will apply; as regards the refund claim which has been sanctioned but remitted back to the Adjudicating Authority by the First Appellate Authority , the Adjudicating Authority has to only consider the point of remand proceedings of the of the First Appellate Authority .
10. All the appeals are disposed of as indicated herein above.
(Dictated and pronounced in the open Court) (M V Ravindran) Member (Judicial) swami 2