Customs, Excise and Gold Tribunal - Calcutta
Commr. Of C. Ex. And Customs vs Nilachal Concrete Products (P) Ltd. on 4 March, 2005
Equivalent citations: 2006[ ]S.T.R.48
ORDER M.P. Bohra, Member (J)
1. Heard Shri K. Sanyal, Id. JDR for the Revenue-Appellant and Shri C.R. Das, Id. Advocate for the respondents.
2. With the consent of both sides, the MA for Additional evidences is allowed.
3. Shri Sanyal submits that the order passed by the Commissioner (Appeals) is erroneous and devoid of legal provisions and the same may be set aside. The Commissioner (Appeals) has not properly appropriated the facts of the case and the legal provisions. There is a incorrect application of legal provisions. Therefore, the appeal may be allowed and the impugned order may be set aside and the order-in-original may be restored.
4. Ld. Advocate, Shri Das submits that the incidence of duty liability has not been passed on to the customer of the respondents as the sale price of the finished product remain unchanged during the period prior to imposition of service tax and after the imposition of service tax. He further submits that consequent upon retrospective amendment as per Section 160 read with 12th Schedule of the Finance Act, 2003, the Notification No. 43/97-S.T., dated 5-11-1997 has been amended with retrospective effect from 16th November, 1997 to 1st June, 1998, so as to provide the exemption on services provided by Goods Transport Operator to small scale units, traders and private trading companies. Now after the amendment to the aforesaid Notification, refund shall be granted in respect of Service Tax which had been collected, which would not have been collected had this amendment been in force, provided refund application is made within one year from 14-5-2003. He, further submits that the following retrospective amendment the Id. Assistant Commissioner of Central Excise & Customs, Balasore, had allowed the refund after observing that the refund is not hit by time-barred and the service tax paid by the assessee has not been passed to any other person and the incidence of duty has borne by the assessee. Therefore, he submits that the appeal may kindly be rejected.
5. In the present case, the Assistant Commissioner of Central Excise & Customs, Balasore has sanctioned the refund for the period December, 1997 to June, 1998. The Assistant Commissioner has mentioned in his order as follows :
As per report submitted by the jurisdictional Superintendent (S. Tax) Central Excise & Customs, Balasore I Range on verification of the documents/records furnished by the assessee, I find that the assessee is a small scale unit registered with Govt. of Orissa and the amount of Service Tax paid by the assessee has not been passed on to any other person and the incident of duty has been borne by the assessee. Since the original refund claim was sanctioned vide order-in-original No. 68 (18) 46/Refund/Bis/99/352/2000, dated 4-2-2000 without any objection regarding time bar and the present claim arises out of OIA dated 20-10-2003 issued under C.No. cited supra, I find that the claim of refund is not hit by time bar.
I have also perused the order passed by the Commissioner (Appeals). He has also dealt with the provisions and came to the conclusion that the incidence of tax had not been passed on to the customer. In the present case, the sale price of the finished product remain unchanged during the period prior to imposition of service tax and after the imposition of service tax. I do not find any infirmity in the impugned order. Appeal has no force. Consequently, I dismiss the appeal filed by the Revenue.