Madhya Pradesh High Court
The Commissioner vs M/S Dcm Shri Ram Consolidate Ltd. on 18 November, 2020
Bench: Sanjay Yadav, Vijay Kumar Shukla
1 CEA.No.25/2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
Heard through Video Conferencing
CEA.No.25/2017
The Commissioner, Customs, Central Excise & Service Tax, Indore
vs.
M/s.DCM Shri Ram Consolidated Ltd.
_____________________________________________________
Shri Himanshu Shrivastava, learned counsel for the appellant.
Shri G.N.Purohit, learned Senior Counsel with Ms.Uma Parasar,
learned counsel for the respondent.
_____________________________________________________
CORAM :
Hon'ble Shri Justice Sanjay Yadav, Acting Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
_____________________________________________________
ORDER
Jabalpur, dated : 18.11.2020 Per : Sanjay Yadav, Acting Chief Justice.
This Appeal under Section 35-G(1) of the Central Excise Act, 1944 is directed against the Final Order No.ST/A/52049/2017-CU [DB] dated 17.02.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi, was admitted on 25.09.2017 on the following substantial question of law :
"1. Whether in the given facts and circumstances of the case when the actual cost of transportation and material is taken by the party to arrive at the costing of product and same was recovered from their buyers 2 CEA.No.25/2017 then any refund claimed by the party is hit by principles of unjust enrichment or not ?
2. Whether in the given facts and circumstances of the case, the Tribunal is right in law in holding that the assessments of M/s GAIL were provisional whereas infact M/s GAIL had never applied for provisional assessment nor any speaking order for provisional assessment was issued by the revenue and in the absence of any formal order there cannot be any provisional assessment and in the absence of any provisional assessment, the claim filed on 04.04.2011 beyond the period of limitation by the respondent service receiver for the period from 15.03.2009 to 15.06.2010 is time barred ?
3. Whether the Tribunal has committed an error of law in holding that the respondent is entitled for refund as there was no unjust enrichment since credit note has been issued by ignoring the law laid down by the Supreme Court in the case of M/s MRF Ltd. Vs. Commissioner of Central Excise, Madras - [1997 (92) ELT 309 (SC)] wherein it was held that the duty was chargeable on the price prevailing on the date of actual removal of goods and the subsequent reduction in the price could not create a right in favour of the assessee ?"
2. The substantial question of law arises in the conspectus of the fact that M/s. DCM Shriram Consolidated Ltd., Shriram Nagar, Kota is engaged in the manufacture of Urea (Nitrogenous Fertilizer) which is sold to ultimate customers. Respondent filed 'Form-R' dated 25.03.2011 at Division Gwalior on 04.04.2011 claiming thereby refund of Service Tax on the ground that the respondent has paid excess Service Tax amounting to Rs.1,15,10,089/- for the period 01.03.2009 to 15.06.2010 to their Service provider i.e. M/s.GAIL (India) Ltd., Guna. That the 3 CEA.No.25/2017 incidence of said Service Tax was borne by the respondent. The claim was filed by the respondent under the service category of 'Transport of goods through Pipeline Services' classified under Section 65(50) & 105 (zz) of Finance Act, 1994.
3. That, on scrutiny of refund claim and the supporting documents submitted by the appellant, following discrepancies were observed :
"(a) The respondent claimed the refund of Service Tax paid by them for the services received during the period 15.03.2009 to 15.06.2010. The refund claim was filed by the respondent on 04.04.2011, therefore, refund claim for the services received upto 04.04.2010 is time barred, as it has been filed after the statutory defined time period under Section 11B of Central Excise Act, 1944.
(b) No documentary proof of payment of Service Tax by the service provider to the Government account had been provided by the respondent.
(c) Since the service provider had not opted for provisional assessment, therefore, it is not open for them to reassess the liability of the payment of service tax. Thus neither the reduced value of services can be accepted nor can refund be granted.
(d) No documentary proof had been provided by the respondent to show that incidence of tax has not been passed on to any other person. The contention of respondent that they had themselves borne the incidence of tax is not acceptable as it was not supported by documentary evidence, therefore, refund cannot be granted. As such, the claim for refund of Service Tax filed by the respondent on 04.04.2011 for Rs.1,15,10,089/- appeared to be not admissible to them."4 CEA.No.25/2017
4. Show cause notice dated 06.06.2011 culminated into an order dated 26.09.2011 rejecting refund claim. The order of rejection was affirmed in Appeal on 26.09.2011 by the Commissioner (Appeals), Central Excise, Indore. Whereagainst in an Appeal before CESTAT, the order passed by Adjudicating Authority and the Appellate Authority were set-aside by relying on its earlier decision in Chambal Fertilizers and Chemical Ltd. vs. CCE, Indore observing :
"3. After hearing both the parties and on perusal of record, it appears that the appellant is engaged in the manufacture of fertilizer which is exempted from the duty. The appellant paid the service tax to the GAIL who authorised the appellant to receive the refund. Hence, no element of unjust enrichment. ...
5. By following our earlier decision (supra), we set- aside the impugned order and remand the matter to the adjudicating authority for denovo adjudication in the light of the above observations but by providing a reasonable opportunity to the assessee to present their case with liberty to file additional evidence, if necessary, as per law."
5. Identical issue came up for consideration before the Gwalior Bench of this Court in CEA No.96/2018, wherein, while relying on the decision in Commissioner of Central Exicse, Mumbai-II vs. Allied Photographics India Ltd. (2004) 4 SCC 34 and Steel Authority of India vs. Commissioner of Central Excise, Raipur;
Civil Appeal No.2562/2012 and the given facts which were identical to the facts adverted in present case, it was held:
"[20] We, however, observe that the CESTAT has cryptically decided the appeal which is apparent from paragraphs 6 and 7 of the impugned order. By 5 CEA.No.25/2017 observing that since tariff is managed by the statutory body to be followed by the gas companies and he service tax payment is provisional and therefore with the determination of final rate, a right accrues in the assessee; therefore, the limitation is to be construed accordingly. Apparently, the Tribunal glossed over the fact that the M/s GAIL had not sought a provisional assessment and it was not its case that on final assessment that there is a determination that the service tax paid is on the higher side and therefore it should revert to the receiver of service.
[21] Dwelling on the issue as to "whether a claim for refund after final assessment is governed by Section 11B of the Central Excise Act, 1944?, their Lordships in Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd. [(2004) 4 SCC 34], held:-
"8. On 20.9.1991, the above Section 11-B underwent a drastic change vide Central Excises and Customs Laws (Amendment) Act 40 of 1991 (hereinafter referred to as "the Amendment Act"). By the Amendment Act, the concept of unjust enrichment as undeserved profit was introduced. We reproduce herein below amended Section 11-B:
"11-B. Claim for refund of duty.- (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12-A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person:
Provided that where an application for refund has been made before the commencement of the Central Excises and 6 CEA.No.25/2017 Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act:
Provided further that the limitation of six months shall not apply where any duty has been paid under protest.
(2) If, on receipt of any such application, the Assistant Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund:
Provided that the amount of duty of excise as determined by the Assistant Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to
(a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
(b) unspent advance deposits lying in balance in the applicant's account current maintained with the Commissioner of Central Excise;
(c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act;
(d) the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person;
(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;7 CEA.No.25/2017
(f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette specify:
Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person.
(3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2).
Explanation. For the purposes of this section,-
*** (B) "relevant date" means ***
(f) in any other case, the date of payment of duty."
9. According to Statement of Objects and Reasons for enacting the Amendment Act, the Public Accounts Committee recommended introduction of suitable legislation to amend the said Act to deny refunds in cases of unjust enrichment. Under the amended Section 11-B(3) of the said Act, notwithstanding anything to the contrary in any judgment, decree, order or direction of the appellate Tribunal or any Court, no refund was to be made except in accordance with Section 11-B(2) of the said Act. Further, there was substitution of sub- clause (e) to explanation B to section 11B(1) by which the original sub- clause (e) was deleted and substituted by new sub-clause (e) under which in cases where duty has been passed on by the manufacturer to the buyer, the relevant date for computing the period of limitation would commence from the date of purchase of goods by the buyer. At this stage, it is important to note that although sub- clause (e) as it stood prior to 20.9.1991 dealt with the period of limitation in cases of refund of duty paid under provisional assessment, the substantive 8 CEA.No.25/2017 provision for provisional assessment of duty was Rule 9-B. Therefore, even with the deletion of old sub-clause (e), Rule 9-B continued during the relevant period. The deletion of subclause (e) and continuation of Rule 9-B shows that the Section 11- B (as amended) applied to claiming of refunds where the burden was on the applicant to apply within time and prove that the incidence of duty has not been passed on whereas Rule 9-B covered cases of ordering of refund/making of refund, where on satisfaction of the conditions, the concerned officer was duty bound to make the order of refund and in which case question of limitation did not arise and, therefore, there was no requirement on the part of the assessee to apply under Section 11-B. Lastly, Rule 9-B referred to payment of duty on provisional basis by the assessee on his own account and, therefore, in cases where the manufacturer has been allowed to invoke this rule and refund accrues on adjustment under Rule 9-B(5) that refund is on the account of the manufacturer and not on the account of the buyer. If one reads Section 11 on one hand and Rule 9-B on the other hand, both indicate payment by the assessee on his own account and refund becomes due on that account alone.
10. In the light of what is stated above, we now quote hereinbelow para 104 of the judgment of this Court in the case of Mafatlal Industries Ltd. (supra):
"104. Rule 9-B provides for provisional assessment in situations specified in clauses
(a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that "when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be". Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9-B will not be governed by Section 11-A or Section 11-B, as the case may be. However, if the 9 CEA.No.25/2017 final orders passed under sub-rule (5) are appealed against or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11-B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9-B(5) reagitating the issues already decided under Rule 9-B-
assuming that such a refund claim lies and is allowed, it would obviously be governed by Section 11-B. It follows logically that position would be the same in the converse situation."
11. At the outset it may be pointed out that in para 104 there is nothing to suggest that payment of duty under protest does not attract bar of unjust enrichment. Para 104 only states that if refund arises upon finalization of provisional assessment, Section 11-B will not apply.
12. In the present case, reliance was placed by the respondent M/s APIL on the above para in support of its contention that payment of duty under protest and payment of duty under provisional assessment are both "on account" payments under the Act. We do not find any merit in this argument. As discussed, there is a basic difference between duty paid under protest and duty paid under Rule 9-B. The duty paid under protest falls under Section 11-B whereas duty paid under provisional assessment falls under Rule 9- B. That Section 11-B deals with claim for refund whereas Rule 9-B deals with making of refund, in which case the assessee has not to comply with Section 11-B. Therefore, Section 11-B and Rule 9-B operate in different spheres and, consequently, in para 104 of the said judgment, it has been held that in cases where duty is paid under Rule 9-B and refund arises on adjustment under Rule 9-B, then such refund will not be governed by Section 11-B. In the said para, it has been clarified that if an independent refund claim is made after adjustment on final assessment under Rule 9-B(5), agitating the same issues, then such claim would attract Section 11-B. This is because when the assessee makes an independent refund claim after final orders under Rule 9-B(5), such application represents a claim for 10 CEA.No.25/2017 refund and, it would not come in the category of making of refund and therefore, the bar of unjust enrichment would apply. Hence, there is no merit in the contention of the respondent M/s APIL that although in this case duty was paid under protest, there was no difference between such payment and duty paid under provisional assessment under the said Act. This argument was obviously advanced because unless the two payments are equated as contended, the respondent M/s APIL was required to comply with Section 11-B. In this matter, duty has been paid under protest. It is the case of the respondent M/s APIL that since such payment was similar to payment under Rule 9-B, the respondent M/s APIL was not required to comply with Section 11-B. In the light of the discussion hereinabove, we hold that the respondent was bound to comply with Section 11-B. Lastly, in any event, the application dated 11.2.1997 fell in the category of refund claim being made after finalization of assessment of NIIL and, therefore, Section 11-B had to be complied with in terms of para 104 of the above judgment in the case of Mafatlal Industries Ltd. (supra). For abovestated reasons, since there was failure to comply with Section 11-B, the respondent was not entitled to refund.
13. The point which still remains to be decided is whether the respondent herein was entitled to refund without complying with Section 11-B of the Act on the ground that it had stepped into the shoes of NIIL (manufacturer) which had paid the duty under protest. It was argued on behalf of the respondent that NIIL had paid the excise duty under protest pending final assessment, which was ultimately decided in favour of NIIL and since NIIL had sold the product to the respondent herein, the respondent was entitled to the benefit of the second proviso to Section 11-B(1) which inter alia stated that limitation of six months shall not apply where duty had been paid under protest. We do not find any merit in this argument. In the case of Bombay Tyre International Ltd. (supra), it has been held by this Court that Section 3 of the said Act is a charging section whereas Section 4 is a computation section which covers assessment and collection of excise duty. That the basis of assessment under Section 4 was the real value of excisable goods which included manufacturing cost and manufacturing profit but 11 CEA.No.25/2017 excluded selling cost and selling profit. That the price charged by the manufacturer for sale of the goods represented the real value of the goods for assessment of excise duty. In the case of Atic Industries Ltd. v. H. H. Dewa, Asstt. Collector of Central Excise [AIR 1975 SC 960], this Court has held that the resale price charged by a wholesale dealer who buys goods from the manufacturer cannot be included in the real value of excisable goods in terms of Section 4 of the said Act. Therefore, it is clear that the basis on which a manufacturer claims refund is different from the basis on which a buyer claims refund. The cost of purchase to the buyer consists of purchase price including taxes and duties payable on the date of purchase (other than the refund which is subsequently recoverable by the buyer from the Department). Consequently, it is not open to the buyer to include the refund amount in the cost of purchase on the date when he buys the goods as the right to refund accrues to him at a date after completion of the purchase depending upon his success in the assessment. Lastly, as stated above, Section 11-B dealt with claim for refund of duty. It did not deal with making of refund. Therefore, Section 11-B(3) stated that no refund shall be made except in terms of Section 11-B(2). Section 11-B(2)
(e) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire scheme of Section 11-B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer (distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of "on account" payment made under protest by the manufacturer without complying with Section 11-B of the Act."
[22] Recently, in Steel Authority of India vs. Commissioner of Central Excise, Raipur; Civil Appeal Nos.2150, 2562/2012, 600, 1522-23 and 599/2013 decided on 08/05/2019, it is held:
12 CEA.No.25/2017"9. At this juncture we think it apposite to refer to the facts in MRF case (MRF Limited v. Collector of Central Excise, Madras). MRF Case was decided on 12.3.1997 and it is reported in 1997 (5) SCC 104. The appeal was filed in this Court against the order passed by the Tribunal dated 24.9.1986. By the impugned order the assessee's claim for refund of excess duty paid on differential price on the date of removal and the reduced price was rejected. The case set up by the assessee was that the price list was approved on 14.5.1983. Subsequently, there was resistance by the consumers. The Ministry of Commerce, Government of India, thereupon directed the manufacturer- assessee pursuant to a decision taken in a meeting of Manufacturers to bring down the prices to the pre 14.5.1983 level. On the basis of the same a difference in the prices arose. This led to a claim for refund. The Tribunal was of the view that the prices at the time of removal alone mattered. The subsequent reduction in the prices for whatever reason was totally irrelevant. Thereafter, the court proceeded to hold as follows:
"2. We have heard the learned counsel for the assessee. Once the assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department insofar as the liability to payment of excise duty was concerned. This is the view which was taken by the Tribunal in the case of Indo Hacks Ltd. V. CCE (1986) 25 ELT 69 (Trib) and it seems to us that the Tribunal's view that the duty is chargeable at the rate and price when the commodity is cleared at the factory gate and not on the price reduced at a subsequent date is unexceptionable. Besides as rightly observed by the Tribunal the subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned. That being so, even if we assume that the roll back in the price of tyres manufactured by the appellant Company was occasioned on account of the directive issued by the Central 13 CEA.No.25/2017 Government, that by itself, without anything more, would not entitle the appellant to claim a refund on the price differential unless it is shown that there was some agreement in this behalf with the Government and the latter had agreed to refund the excise duty to the extent of the reduced price. That being so, we see no merit in this appeal brought by the assessee and dismiss the same with no order as to costs."
36. We have noticed that in this case admittedly that at the time goods were removed the price was not fixed. The Assessee was fully conscious of the fact that it was subject to variation. Assessee must be imputed with knowledge that the value it was declaring was amenable to upward revision. The circumstances were indeed clearly both apposite and appropriate for the Assessee to invoke the provisions of Rule 7 and seek an order for provisional assessment. In fact, take the example of manufacturer A and manufacturer B. Both remove goods under contracts which contain escalation clauses. Manufacturer A invokes Rule 7. It seeks permission for removal of goods on provisional assessment. Though an order of final assessment has to be passed within a period of time it is capable of being extended without any time limit.
Manufacturer-A on the basis of upward revision of the price with retrospective effect and acknowledging the value to be the value as provisionally assessed and as enhanced by the escalation arrived at under the escalation clause pays the duty when the escalation comes into effect on the difference in the value under Rule 7. Apart from payment of the differential excise duty manufacturer A becomes also liable to pay interest from the date when the escalation would come into play on the arrival at the higher price having retrospective operation. Manufacturer B in identical facts clears the goods on the basis of self-assessment even though he is fully aware that the value of the goods which is paid is not fixed and is amenable to upward revision. He deliberately chooses not to go in for provisional assessment. Thereafter, he pleads that though he was aware that the value is not fixed and the prices on removal was tentative and was amenable to change since he has paid duty on the tentative value he is not liable to pay interest on the 14 CEA.No.25/2017 value of the goods on the differential duty which he is admittedly liable to pay. Is it contemplated ?"
[23] Their Lordships further observed:-
"63. We are of the view that the reasoning of this Court in the order referring the cases to us (to this Bench) that for the purpose of Section 11AB, the expression "ought to have been paid" would mean the time when the price was agreed upon by the seller and the buyer does not square with our understanding of the clear words used in Section 11AB and as the rules proclaim otherwise and it provides for the duty to be paid for every removal of goods on or before the 6th day of the succeeding month. Interpreting the words in the manner contemplated by the Bench which referred the matter would result in doing violence to the provisions of the Act and the Rules which we have interpreted. We have already noted that when an assessee in similar circumstances resorts to provisional assessment upon a final determination of the value consequently, the duty and interest dates back to the month "for which" the duty is determined. Duty and interest is not paid with reference to the month in which final assessment is made. In fact, any other interpretation placed on Rule 8 would not only be opposed to the plain meaning of the words used but also defeat the clear object underlining the provisions. It may be true that the differential duty becomes crystalised only after the escalation is finalized under the escalation clause but it is not a case where escalation is to have only prospective operation. It is to have retrospective operation admittedly. This means the value of the goods which was only admittedly provisional at the time of clearing the goods is finally determined and it is on the said differential value that admittedly that differential duty is paid. We would think that while the principle that the value of the goods at the time of removal is to reign supreme, in a case where the price is provisional and subject to variation and when it is varied retrospectively it will be the price even at the time of removal. The fact that it is known, later cannot detract from the fact, that the later discovered price would not be value at the time of removal. Most significantly, Section 11A and Section 11AB as it stood at the relevant time did not 15 CEA.No.25/2017 provide read with the rules any other point of time when the amount of duty could be said to be payable and so equally the interest. We would concur with the views expressed in SKF case (supra) and International Auto (supra). We find no merit in the appeals. The appeals will stand dismissed."
[24] In another recent judgment in Western Coalfields Ltd. Vs. Commissioner of Central Excise Trichy, Madurai [AIR 2019 SC 1069], it is held:
"12. Section 11B deals with the claim of refund of duty as paid on his own accord by any person for refund of such duty to the competent authority before the expiry of six months from the relevant date as prescribed but where the duty was paid under protest in terms of the 2nd proviso to Section 11B(1), the period of limitation may not apply. Although the buyer can also apply for refund provided the duty of excise is borne by the buyer and he had not passed on the incidence of such duty to any other person as referred to under Section 11B(2)(e) and the application has been moved within the period of six months from the relevant date of purchase of the goods by such person in terms of Section11B(5)(B)
(e) of the Act. The scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act and it has been examined by the three-Judge Bench of this Court in Commissioner of Central Excise, Mumbai-II v.
Allied Photographics India Ltd. case (supra) as under:--
"Therefore, Section 11-B(3) stated that no refund shall be made except in terms of Section 11-B(2). Section 11-B(2)(e) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire scheme of Section 11-B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are 16 CEA.No.25/2017 different from the accounts of a buyer (distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of "on-account" payment made under protest by the manufacturer without complying with Section 11-B of the Act."
It was further held as under:--
"Having come to the conclusion that the respondent was bound to comply with Section11B of the Act and having come to the conclusion that the refund application dated 11-2-1997 was time-barred in terms of Section 11B of the Act, we are not required to go into the merits of the claim for refund by the respondent who has alleged that it has not passed on the burden of duty to its dealers."
[25] When the findings, rather conclusions only, in paragraph 6 of the impugned judgment are tested on the anvil of above analysis, it leaves no iota of doubt that the Tribunal has grossly erred in law in holding that the claim for refund rejected for the reason being time barred, should be treated as within time and the "claims are to be processed", which deserves to be and is hereby set aside. [26] Even shifting the burden on the department to find out as to whether the assessee has not passed the burden of tax on the final consumer cannot be countenanced in the given facts of present case.
[27] Consequently, the substantial questions of law :-
(a) Can the assessee make a 'claim for refund' without documentary evidence for payment of the amount of refund claim stating that they are not obliged to pay service tax to the Central Government?
(b) Whether there is any relevancy in making adjustments (refund claim of service tax) by issue of credit note or any other means subsequent to clearance of goods when the burden of Service tax payment is passed on?
(c) Whether limitation period prescribed in Section 11B of Central Excise Act, 1944 is applicable in the present facts of the matter wherein service provider M/s GAIL (India) Ltd. Guna, M.P. has paid service tax finally to the Government of India?17 CEA.No.25/2017
(d) Whether the principle of undue enrichment is applicable to the present claim of refund of service tax by the respondent?
are answered against the assessee. The impugned order passed by the CESTAT is set aside. The order passed by the Assistant Commissioner and its affirmation are upheld."
6. It is informed that the order passed in CEA No.96/2018 is subjected to challenge in Special Leave Petition (C) Nos.3487/2020 before Hon'ble Supreme Court wherein notices are issued on 03.02.2020. It is however, fairly submitted by learned Senior Counsel that the order in CEA No.96/2018 is not stayed.
7. In view whereof, the present Appeal is disposed of finally in terms of the order passed in CEA No.96/2018. The impugned order dated 17.02.2017 passed in ST/A/52049/2017-CU [DB] by Commissioner, Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi is set-aside. The order passed by the Adjudicating Authority and its affirmation are upheld. No costs.
(Sanjay Yadav) (Vijay Kumar Shukla)
Acting Chief Justice Judge
anand
Digitally signed by
ANAND KRISHNA SEN
Date: 2020.11.23
12:20:24 +05'30'