Custom, Excise & Service Tax Tribunal
Sociedade De Fomento Industrial Pvt. ... vs Commissioner Of Ce & Customs on 16 July, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. ST/367/10 (Arising out of Order-in-Appeal No. CEX/GOA/VSK/10/2010 dated 15.04.2010 passed by Commissioner of Central Excise & Customs (Appeals), Goa) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical) ================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
Sociedade de Fomento Industrial Pvt. Ltd.
Appellant Vs. Commissioner of CE & Customs, Goa Respondent Appearance:
Shri C.S. Biradar, Advocate for appellant Shri R.K. Das, Deputy.Commissioner (AR) for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical) Date of Hearing: 16.07.2015 Date of Decision: 16.07.2015 ORDER NO Per: M.V. Ravindran
This appeal is directed against Order-in-Appeal No. CEX/GOA/VSK/10/2010 dated 15.04.2010
2. Heard both sides and perused the records.
3. The issue involved in this case is regarding the refund claim filed by the appellant before the Revenue authorities on the ground that they have been levied service tax on Iron Ore (minerals) and they have exported the consignment and no service tax liability arises under the category of Business Auxiliary Services. Adjudicating authority after considering the submission made by the appellant on show-cause notice and after following due process of law rejected the refund claim. Aggrieved by such an order, an appeal was preferred before the first appellate authority. The first appellate authority has in the impugned order in para 18 accepted the contention of the appellant as service tax liability is not payable under the category of Business Auxiliary Service in respect of services related to mining prior to 01.06.07 but rejected the refund claim on the ground of unjust enrichment.
4. Learned Counsel brings to our notice the facts of the case and also finding of the first appellate authority and submits that there is no dispute as to the fact that the appellant had exported iron ore purchased from one M/s Narvenkar to extract to ore. It is his submission that once there is extraction and export of iron ore, the question of unjust enrichment will not arise. It is also his submission that the findings recorded by the first appellate authority on the unjust enrichment are also curious.
5. Learned D.R. reiterated the findings of the lower authorities.
6. We have considered the submissions made by both sides and perused the records.
7. On perusal of the records we find that there is no dispute as to the fact that the first appellate authority has recorded the findings that service tax is not payable under the category of Business Auxiliary Service in respect of services related to mining prior to 01.06.2007. Both the sides are unable to bring to our notice that whether Revenue has filed any appeal against such findings.
8. On merits, the first appellate authority has held in favour of the appellant that service tax is not payable and also held that question of unjust enrichment will arise. We find these findings are not in consonance of law there as there is no dispute that iron ore, which was purchased by appellant as a merchant exporter, was exported. If the appellant has exported the consignment, it is a settled law that any tax paid on such exports needs to be refunded. We find that the first appellate authority has arrived at the conclusion of unjust enrichment looking at the accounting treatment given by the person who has paid service tax to the Government i.e. M/s Narvenkar. In our view this proposition is totally incorrect appreciation of the fact as no unjust enrichment arises appellant having paid service tax liability to M/s. Narwenkar as in our view, the accounting treatment given to M/s. Narwenkar may be of no consequence to the appellant for filing refund claim as taxes paid on exported goods. In view of the foregoing, we find that the impugned order is unsustainable and liable to be set aside and we do so.
9. Impugned order is set aside and the appeal is allowed with consequential relief, if any. (Dictated in Court) (Raju) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk ??
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