Custom, Excise & Service Tax Tribunal
M/S. Hazira Lng Pvt. Limited vs Commissioner Of Service Tax, Ahmedabad on 31 August, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : ST/10419/2015 (Arising out of OIA-AHM-SVTAX-000-APP-183-14-15 dated 02.01.2015 passed by Commissioner (Appeals) Central Excise & Service Tax, Ahmedabad) M/s. Hazira LNG Pvt. Limited : Appellant (s) VERSUS Commissioner of Service Tax, Ahmedabad : Respondent (s)
Represented by :
For Appellant (s) : Shri Jigar Shah, Advocate For Respondent (s) : Shri S.K. Shukla, Authorised Representative For approval and signature :
Mr. P.M. Saleem, Hon'ble Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? YES 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Mr. P.M. Saleem, Hon'ble Member (Technical) Date of Hearing : 23.08.2016 Date of Decision : 31.08.2016 ORDER No. A/10792 / 2016 dated 31.08.2016 Per : Mr. P.M. Saleem Heard both sides and perused the records.
2. Briefly stated the recorded facts of the case are that the appellant and M/s. Hazira Gas Pvt. Limited were associated enterprises. During the period from 2008-09 to 2011-12 the appellant has provided the business support service to M/s. Hazira Gas Pvt. Limited and vice versa and charged service tax. On 28.08.2012, Hon'ble Gujarat High Court passed an order of amalgamation of appellant and HGPL. The appointed date of the said scheme of amalgamation as approved by the Hon'ble High Court was 01.4.2008. It was contended by the appellant that taking into account the facts that the appointed date of the said amalgamation was 01.4.2008, M/s. Hazira Gas Pvt. Limited lost its existence on that date and it is legally did not survive and become a part and parcel of appellant. Therefore, with effect from 01.4.2008, cost sharing debit note transactions between M/s. Hazira Gas Pvt. Limited and the appellant cannot be considered as transactions between two separate persons. Thus from 01.4.2008, the service rendered by the appellant to M/s. Hazira Gas Pvt. Limited and vice-versa is service to self and therefore is not liable to service tax. Since, service tax of Rs. 25,84,951/- has already been paid on the above mentioned transactions, the appellant filed a refund claim. Alleging that the appellant has failed to submit the documentary evidences to prove that the claim is eligible on merits as the claim appeared to be for the period prior to date of amalgamation, that they failed to submit documentary evidences to the effect that the subject claim is not hit by limitation of time bar and, that they filed to submit the documentary evidences to prove that the claim is not hit by principles of unjust-enrichment; the department issued a show cause notice dated 23.8.2013 to the appellant. The said show cause notice was decided by the impugned order wherein the whole refund claim was rejected on the ground that the said refund claim is hit by the limitation of time bar. On appeal, the Commissioner (Appeals) upheld the Order-in-Original by the impugned Order-in-Appeal dated 02.01.2015. The appellants are before us aggrieved by the same.
3. Ld. Advocate appearing for the appellant submits that the issue is squarely covered by the decision of the Tribunal in the case of Commissioner of Service Tax vs. ITC Hotels Limited 2012 (27) STR 145 (Tri. Del.) and Indian Oil Corporation Limited vs. Commissioner of Service Tax, Mumbai 2015 (37) STR 575 (Tri. Mumbai). On the other hand, ld. Authorised Representative for Revenue submits that the decision of the Tribunal in the case of Indian Oil Corporation Limited vs. Commissioner of Service Tax, Mumbai (supra) was not brought to the notice of first appellate authority for consideration. Moreover, he submits that the Commissioner (Appeals) has only gone into the issue of whether the refund claim is hit by limitation or otherwise and has held that the same is hit by limitation and therefore, rejected the refund claim on the ground of limitation without going into merits. He submits that since the SCN proposed rejection of the refund application on merits also, and since the lower authorities have not considered the same, the matter has to go back.
4. On careful consideration of the arguments of both sides and examination of the records, it is observed that the impugned show cause notice proposed to deny the refund claim on merits as well as on non-production of documentary evidences, on the principle of unjust-enrichment, limitation etc. The adjudicating authority and the first appellate authority have not considered the matter on merits and have rejected the refund claim only on limitation without going into merits of the case. Further, it is alleged that the said claimant had not submitted any evidence whatsoever to prove that the service tax claimed as refund has been paid by the said claimant. It is also observed that the original adjudicating authority or the first appellate authority had no opportunity to examine the case law, now submitted by the appellant with regard to limitation as well as merits. Hence, we find that this matter has to be remanded back to the adjudicating authority for fresh decision after giving reasonable opportunity of hearing to the appellants. All issues are kept open.
5. Appeal is allowed by way of remand.
(Order pronounced in the open Court on 31.08.2016) (P.M. Saleem) Member (Technical) ..KL 2