Custom, Excise & Service Tax Tribunal
Oil & Natural Gas Corporation Ltd vs Commissioner Of Service Tax, Mumbai on 30 March, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.1
ST/MA(Ors)1525/09-Mum & APPEAL NO. ST/140/09-Mum
(Arising out of Order-in- Appeal No. KKS(21)21/STC/2009 dtd. 20.3.2009 passed by the Commissioner of Central Excise (Appeals), Mumbai)
For approval and signature:
Honble Mr P.G.Chacko, Member(Judicial)
Honble Mr.Sahab Singh, Member(Technical)
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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 : Yes
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?
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Oil & Natural Gas Corporation Ltd.
:
Appellant
VS
Commissioner of Service Tax, Mumbai
Respondent
Appearance
Shri Shri D.B.Shroff, advocate with Shri Manoj Sanklecha, advocate for Appellant Shri Shri A.K.Prasad, Jt.C.D.R. for Respondent CORAM:
Mr. P. G. Chacko, Member(Judicial) Mr. Sahab Singh , Member(Technical) Date of decision 31/03/11 ORDER NO.
Per : P.G.Chacko The appeal is against rejection of a refund claim filed by M/s. Oil & Natural Gas Corporation Ltd. (ONGC for short), whose claim for refund of service tax of Rs. 32,64,75,333.96 was rejected on numerous grounds by the Asstt. Commissioner of Service Tax, whose decision was sustained by the Commissioner (Appeals). The claim of ONGC, which was filed on 6.8.07, was for refund of the aforesaid amount of service tax paid by M/s. CGG Marine on 31.3.06 and 16.5.06 on the taxable value of survey and exploration of mineral service rendered to ONGC under three contracts between the companies, the first dated 22.9.04, the second dated 23.11.05 and the third dated 21.2.06. Each contract was concluded between ONGC as the first party and M/s. CGG Marine, a company incorporated in France under the relevant French law, as the second party, referred to as the contractor. Under these contracts, the contractor was required to undertake seismic survey in specific areas earmarked in the Continental Shelf and Exclusive Economic Zone of India, beyond Indian territorial waters, off the Western and Eastern Coasts. The purpose of such survey was to locate mineral oil/natural gas beneath the seabed. The contractor was required to acquire the necessary seismic data, process the same on board the vessel and store the same in tapes and supply these tapes containing the necessary data to ONGC ashore. For such service, ONGC was liable to pay a specific sum to the contractor. Accordingly, the contractor discharged their obligation and ONGC paid for it. This happened during July, 2005 to April, 2006. Each of the contracts contained a condition pertaining to payment of tax, as per which the service tax was to be paid by the contractor and ONGC was liable to reimburse the same. Accordingly, the contractor paid service tax on the taxable value of the service provided to ONGC. The amount of service tax covered by the refund claim in question was paid partly on 31.3.06 vide TR-6 challan 1/2006 and partly on 16.5.06 vide TR-6 challan 1/2006-07, totalling to Rs. 32,64,75,333.96. Copies of both the TR-6 challans are available on record and the same indicate that the payments were made under protest. The name and the address of the assessee as shown in these documents read thus:-
CGG Marine, SAPT Building Basement, 18, J.N.Heredia Marg, Ballard Estate, Mumbai - 400 001.
2. M/s. CGG Marine ( the contractor) filed a refund claim on 23.4.2007 alongwith relevant documents. ONGC filed the subject refund claim on 6.8.2007. This claim was filed in the format prescribed under Rule 173 S of the Central Excise Rules, 1944. This refund application of ONGC stated, in the opening paragraph thereof, that it was being filed to add, supplement and support the applications for refund already filed by the contractor. In this application, ONGC, however, claimed refund for themselves by stating that the service tax paid by the contractor under protest had been reimbursed to them. ONGC further stated that the levy of service tax from the contractor was purportedly under Sec.65(105)(zzv) of the Finance Act, 1994. After referring to Circular No.36/4/2001-CX dated 8.10.2001 issued by the CBEC, ONGC, in their refund application, contended that the service provided to them by the contractor was not subject to levy of service tax under the Finance Act,1994 as the service was rendered beyond the territorial waters of India. They also relied on the Taxation of Services (Provided from outside India and Received in India) Rules, 2006. They further contended that, in any case, the service was not liable to be taxed in India by virtue of the exemption from payment of service tax on export of services under the Export of Services Rules, 2005.
3. Upon receipt of the refund claim, the Asstt.Commissioner issued show-cause notice dated 22.8.2007 to ONGC calling upon them to show cause why the claim should not be rejected as inadmissible under sub-section (2) of Sec.11B of the Central Excise Act as made applicable to service tax under Sec.83 of the Finance Act, 1994. The grounds raised in the show-cause notice for rejecting the refund claim were, to state briefly, as follows:-
(a) The taxable service was provided by the contractor to ONGC within the designated area in Continental Shelf and Exclusive Economic Zone of India as declared by Central Government by Notification No.1/02-ST dated 1.3.02 and, therefore, the contention of ONGC that the service was received outside the territory of India was untenable;
(b) A claim for refund of the same amount of service tax, filed by M/s. CGG Marine, Mumbai on the basis of the same TR-6 challans is also pending and no documentary evidence of reimbursement of the amount by ONGC to the other company has been furnished;
(c) No details of any utilization of CENVAT credit of the service tax in question have been furnished in support of the claim for refund of the tax;
(d) M/s. CGG Marine, Mumbai neither challenged the service tax assessment nor requested for provisional assessment. The assessment attained finality and the same could not be challenged by way of filing refund claim;
(e) No documentary evidence has been furnished to establish that the amount of service tax which is claimed as refund has not been collected from any other person. Hence sanction of the refund claim would result in unjust enrichment.
4. ONGC contested the above show-cause notice. In their reply, the averments already made in the refund claim were, by and large, reiterated. They sought to establish that no service tax was leviable on the activity undertaken by M/s. CGG Marine beyond the territorial waters of India. The benefit of the Export of Services Rules, 2005 was also claimed. It was also contended that, as the service provider deposited the service tax amount under protest and the tax burden was borne by ONGC through reimbursement of the amount to the service provider, the refund claim was liable to be sanctioned without the bar of unjust enrichment. In this connection, it was also claimed that the burden of service tax was not passed on to any other person by ONGC and hence there was no question of their refund claim being hit by unjust enrichment.
5. In adjudication of the dispute, the Asstt.Commissioner rejected the claim under Sec.11B of the Central Excise Act read with Sec.83 of the Finance Act, 1994, after holding that the service was provided to ONGC within the Indian territorial waters, that the benefit of the Export of Services Rules, 2005 was not admissible to them and that the service tax was properly paid by M/s. CGG Marine, Mumbai as agent/branch of M/s. CGG Marine ( France) and was not refundable. Aggrieved, ONGC preferred an appeal to the Commissioner(Appeals) but without any success. The present appeal is directed against the appellate Commissioners order.
6. Like the original authority, the appellate authority also held that ONGC had not been able to prove satisfactorily that the service in question was received in non-designated areas of Continental Shelf and Exclusive Economic Zone and beyond the territorial waters of India. The appellate authority further observed that the whole of the service provided by M/s. CGG Marine to ONGC should be treated as provided in India in terms of Rule 3 (ii) of the Taxation of Services (Provided From Outside India And Received In India) Rules, 2006. The appellate authority did not accept the plea that the service tax had been paid under protest. It also noted that no documents had been produced by ONGC to show that the incidence of tax had not been passed on to any other person.
7. The grounds of this appeal are a replica of the contentions raised by ONGC in their refund claim and reply to show-cause notice.
8. Heard both sides. The ld.counsel for the appellant has endeavoured to show that the marine areas where the contractor conduced seismic survey did not fall within the areas designated by the Central Government under the Territorial Waters, Continental Shelf and Exclusive Economic Zone And Other Maritime Zones Act, 1996 ( hereinafter referred to as Maritime Zones Act) for the purpose of levy of service tax. As part of this endeavour, the ld. counsel has moved a Misc. application, which is also before us today. This application, purportedly filed under Rule 23 of the CESTAT (Procedure) Rules, seeks leave for bringing on record what appear to be xerox copies of a few maps. It is submitted that the limited purpose of producing these documents is to enlarge and clarify certain small maps appended to the contracts. Some of these maps are said to be maps of areas of seismic survey beyond the territorial waters of the western coast. One of these documents is said to be a similar map showing seismic survey area beyond the territorial waters of the eastern coast. Each map shows a set of longitudes and latitudes. The ld.counsel submits that these maps will show that the survey sites were not within the designated areas and hence the documents are necessary for this case. The ld.Jt.CDR has opposed this plea by submitting that these documents are not relevant to the issue in hand. We have considered the submissions of both sides. Admittedly, these maps are only enlargements of certain maps/drawings appended to the contracts. We have examined the relevant appendices to the contracts and have found them to be not useful for determination of the issue in hand. If those are not relevant, these enlarged versions produced by the appellant are equally so. We have also noted that these maps are not authenticated by the competent authority. The misc. application is rejected.
9. On the merits of the appellants case as made out in the appeal, the ld.counsel has made elaborate submissions with reference to the location of the sites of seismic survey. It is submitted that the department is yet to show that these sites are within the areas designated by the Government for purposes of Chapter V of the Finance Act, 1994. In this connection, he has referred to the relevant Notifications issued under the Maritime Zones Act. Notification No.1/02-ST dated 1.3.02 issued by the Central Government under the above Act extended the provisions of Chapter V of the Finance Act, 1994 to certain designated areas in the Continental Shelf and Exclusive Economic Zone of India as declared by Notifications No.429(E) dated 18.7.86 and No.643(E) dated 19.9.96. The ld.counsel has invited our attention to the designated areas declared by the Central Government under Notifications No.429(E) and No.643(E) ibid. He submits that the seismic survey was not performed within the limits of the latitudes and longitudes specified in any of these notifications. It is, therefore, contended that the service in question was provided by M/s.CGG Marine to ONGC not only beyond the territory of India but also outside the areas designated by the Central Government under the Maritime Zones Act. Notification No.14/2010-ST dated 27.2.10 referred to by the ld.counsel was also issued by the Central Government under the above Act and the same extended the provisions of Chapter V of the Finance Act, 1994 to the whole of the Continental Shelf and Exclusive Economic Zone. While conceding that services of the kind provided by CGG Marine could be subject to levy of service tax by virtue of the notification dated 27.2.2010, the ld.counsel submits that such levy could only be prospective. In other words, the Revenue cannot claim support from Notification No.14/10-ST ibid, which did not have retrospective operation.
10. Though, in this appeal, there is an alternative plea based on the Export of Services Rules, 2005, the ld.counsel has not pressed it.
11. However, the ld.counsel has contended that the refund claim in question cannot be rejected on the ground of unjust enrichment. The bar of unjust enrichment is not applicable to PSUs like ONGC. In this connection, the ld.ounsel relied on Commissioner vs. Karnataka State Agrocorn Products Ltd. 2006 (202) ELT 47 (Kar.) and also on Commissioner vs. Power Grid Corporation of India Ltd. 2008 (223) ELT 661 (Tri-Bang). It is also submitted that the service tax paid by M/s. CGG Marine was reimbursed to them by ONGC, whereby the latter acquired the right to claim refund under Sec.11B of the Central Excise Act. It is further submitted that ONGC, being the service recipient, did not have any other person for passing the burden of tax to. Yet another argument is that, as the tax was paid under protest, the claim for its refund cannot be barred by unjust enrichment. In this, support is sought from SAIL vs Commissioner 2008 (230)E.L.T. 647 (Tri-Kol.)
12. The ld. counsel has also reiterated the appellants grievance that their case was not properly considered by either of the authorities below. It is submitted that it was without applying his mind to the maps and drawings produced by the party that the ld.Commissioner(Appeals) took the view that the seismic survey was conducted within the Indian territorial waters.
13. For contra, the ld.Jt.CDR has argued that, as both the service provider and the service recipient were in India during the material period and the benefit of the service in the form of 3D tape (containing seismic data) was received within the Indian territory by ONGC, service tax was leviable on the consideration paid by ONGC to the service provider in terms of the relevant statutory provisions as well as in terms of the contracts. In this connection, he has referred to Sections 65, 66 and 67 of the Finance Act, 1994. It has been argued that the service in question ( survey and exploration of mineral) can be said to have been provided by M/s. CGG Marine to ONGC only when the survey results, duly processed and recorded in 3D tape, are delivered to ONGC (service recipient). The tape was delivered to ONGC in India, a fact not in dispute. Therefore, according to Jt.CDR, M/s. CGG Marine should be held to have provided the above service to ONGC in India. Therefore, the service is taxable under Sec.65(105)(zzv) of the Finance Act, 1994 read with Section 65 (104 a) of the Act. The service tax was actually paid by the service provider as evidenced by the TR-6 challans. The ld.Jt.CDR points out that even the challans prepared by the service provider indicate the assessee to be located in Mumbai and not France. Further, M/s. CGG Marine, Mumbai are registered with the department as a provider of taxable services in relation to survey and exploration of mineral as evidenced by the relevant registration certificate dated 10.8.2005 (copy produced by Jt.CDR). Even otherwise, according to Jt.CDR, the foreign company providing a taxable service in India through its branch located in India should be held to be a service provider in India. Thus it is argued that, in this case, the taxable service was provided in India by a person resident in India to another person resident in India and, therefore, the payment of service tax by M/s. CGG Marine is a levy of service tax falling within the ambit of Sec.66 of the Finance Act, 1994. The Jt.CDR clarifies that this levy has nothing to do with the Notifications issued by the Central Government under the Maritime Zones Act.
14. The ld.JCDR also contends that the refund claim without any challenge to the relevant assessments is not maintainable. He relies on Priya Blue Industries Ltd. vs Commissioner 2004 (172) ELT 145 (S.C.) and Commissioner vs. Hotline CPT Ltd. 2005(179) ELT 313 (Tri-Del.) In an apparent bid to preempt his learned opponent, the JCDR also refers to the High Courts decision in Maharashtra Cylinders Pvt.Ltd. vs CESTAT 2010 (259) E.L.T. 369 (Bom.) wherein it was held that self-assessment also could be challenged by the assessee by filing appeal.
15. As counter to Karnataka State Agrocorn Products (supra) cited by the ld.counsel, the ld.JCDR reefers to Cement Corporation of India Ltd. vs Commissioner 2009 (15) STR 122 (Tri-Del.) wherein it was held that Section 11B of the Central Excise Act did not make any distinction between a private enterprise and a Govt. enterprise in relation to applicability of the doctrine of unjust enrichment. It is also pointed out that the Special Leave Petition filed against the decision was dismissed by the Supreme Court vide 2008 (232) ELT A107 (S.C.)
16. It has been further contended that the refund claim is time-barred. The service tax was paid in March and May, 2006 but the refund claim was filed only on 6.8.2007, beyond the normal period of limitation prescribed under Sec.11B of the Central Excise Act as applicable to claim of refund of service tax vide Sec.83 of the Finance Act, 1994. It is submitted that the appellant cannot get over time-bar by taking shelter under the factum of the service provider having paid service tax under protest. The protest registered by the service provider cannot be a protest for the service recipient. In this connection, the ld.JCDR has relied upon the apex courts judgment in Commissioner of C.Ex.,Mumbai.II vs. Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.)]. He has particularly referred to para 15 of the apex courts judgment wherein an earlier decision of a Division Bench of the court in the case of National Winder vs. Commissioner of Central Excise, Allahabad [2003(154) E.L.T. 350 (S.C.)] was declared to be per incuriam. The view taken in the case of National Winder was that, if a manufacturer paid duty under protest, then the limitation of six months provided under Sec.11B of the Central Excise Act would not apply even to a claim for refund of such duty by the purchaser of the goods. It was this view which was held to be per incuriam in the case of Allied Photographics India Ltd. Therefore, according to Jt.CDR, the refund claim is liable to be rejected as time- barred. In this connection, it has also been argued that the absence of specific mention of time-bar/limitation in the show-cause notice cannot be fatal to the Revenue inasmuch as the notice clearly invoked Sec.11B of the Central Excise Act and also contained specific mention of the dates of payment of service tax as well as the date of the refund claim.
17. In the absence of evidence of reimbursement of the tax amount by ONGC to M/s. CGG Marine, it is submitted that the claim filed by the ONGC is liable to be rejected. It is also submitted that the appellant has not adduced any evidence against the bar of unjust enrichment and hence their claim for refund of the service tax is liable to be rejected on this ground as well.
18. In his rejoinder, the ld.counsel points out that many of the above arguments of the ld.JCDR are beyond the scope of the show-cause notice and not liable to be entertained. He further points out that M/s. CGG Marine have withdrawn their refund claim implying that they received reimbursement of the service tax amount by ONGC. In support of this submission, the ld.counsel has brought on record a copy of Order-in-Original No.83/2008 dated 10.4.2008 passed by the Asstt. Commissioner of Service Tax, Division I, Mumbai. This order indicates that M/s. CGG Marine had filed two applications for refund, one for Rs. 7,44,40,257/- and the other for Rs. 32,64, 75,333/- and that the Asstt. Commissioner rejected the first of these claims, after noting that the assessee is seeking refund of first refund claim of Rs. 7,44,40,257/- only. According to the ld. counsel, it is evident from this order that the other refund claim of M/s. CGG Marine for Rs. 32,64,75,333/- was not pressed before the adjudicating authority. In answer to a query from the bench, the ld. counsel submits that, if necessary, documentary evidence of reimbursement of the tax amount by ONGC to M/s. CGG Marine can be produced. On his part, the ld.JCDR, submits that, given an opportunity, the relevant averments contained in Order-in-Original No.83/2008 relating to the service providers refund claim of Rs. 32,64,75,333/- can be verified and results thereof can be furnished to the bench. Neither of these suggestions is acceptable at this stage. As we are inclined to remand this case, for which reasons will be stated, it will be open to ONGC to produce the evidence ( if any) to the lower authority and it will be open to the authority itself to undertake the verification, if need be.
19. It is necessary to address, at the outset, certain fundamental questions. There is no provision in the Central Excise Act obligating the department to issue a show-cause notice proposing to reject a refund claim filed under Sec.11B of the Act. There can be no doubt that the refund claim in question was filed under Sec.11B of the Act. May be, this provision was not expressly stated in the refund application. But the application was made in the format prescribed under the erstwhile Rule 173 S. We are given to understand that the same format continues to be in use. We have also perused the text of Rule 173 S. Sub-rule (2) specifically provided that any application filed under the Rule shall be in accordance with Sec.11B of the Central Excise Act. Therefore, it cannot be gainsaid that the refund application was filed under Sec.11B of the Central Excise Act. As we have already indicated, the Act nowhere makes it obligatory for the department to issue show-cause notice upon receipt of refund claim filed under Sec.11B. The show-cause notice, in the present case, is by and large in the nature of a counter to the various contentions raised in ONGCs refund claim. Any reference to statutory provisions, Notifications or circulars in the show-cause notice or non-mention of any particular provision of law therein cannot be fatal to the Revenue.
20. What must fall for adjudication by the Asstt.Commissioner is the refund claim rather than the show-cause notice. ONGC raised numerous contentions in their refund application. The show-cause notice issued by the department made an attempt to rebut the contentions raised by the claimant. Of course, it also proposed to reject the refund claim as inadmissible under sub-section (2) of Sec.11B of the Central Excise Act. In the refund application, the party contended, inter alia, that the seismic survey was conducted outside the territory of India and hence no service tax was leviable in relation thereto. The adjudicating authority ought to have taken the cue from this case of the party and to have made an endeavour to make out a case for the Revenue based on the basic statutory provisions. Unfortunately, in this case, this did not happen. The original authoritys attempt was to show that the seismic survey was conducted by M/s. CGG Marine within areas specifically designated by the Central Government under the Notifications issued under the Maritime Zones Act. The adjudicating authority was, apparently, completely oblivious of the basic facts of the case and the fundamental provisions of law. A crucial before the authority was that the survey was conducted by a French company which had its office in Mumbai and that the said company paid service tax through the Mumbai office on the amounts collected by them from ONGC. The fact that the company, through the Mumbai office, was registered with the Central Excise authorities was also not unknown to the Asstt.Commissioner. That the service recipient (ONGC) was resident/situate in Indian territory was also a fact known to the Asstt.Commissioner. The fact that ONGC received 3D tape containing seismic data in India was also available to the Asstt.Commissioner. Prima facie, these facts were enough for him to decide on the question whether the service was provided in India by a person located in India to another person located in India. The Asstt.Commissioner ought to have considered all these facts in the light of the charging provisions of Chapter V of the Finance Act, 1994. In other words, he should have determined the question of leviability of service tax in this case on first principles, in which function he was not fettered by anything contained in the show-cause notice. This is because what required to be adjudicated upon under Section 11B was not the show-cause notice but the refund claim.
21. In doing so, an adjudicating authority has first, to determine the leviability of service tax in the case in hand unless the liability has been admitted. In the second place, it has to see whether the claim for refund of service tax paid by the claimant is within the period of limitation prescribed under sec.11B of the Act. Thirdly, it has to determine whether the claim is barred by unjust enrichment or not. In the instant case, ONGC denied service tax liability in their application for refund, on certain grounds. As we have already indicated, the adjudicating authority just rejected those grounds and held that service tax was leviable and correctly levied on the amount paid by ONGC to M/s. CGG Marine for the service provided by the latter. It was so held on the basis of Notifications issued by the Central Government under the Maritime Zones Act without regard to the charging provisions under the Finance Act, 1994. This is where the original authority fundamentally erred in this case. Further, though the authority was required to ascertain, under Sec. 11B of the Act, whether the refund claim was barred by limitation and unjust enrichment, the Asstt. Commissioner did not even attempt to examine whether the refund claim was time-barred or not. The mere fact that limitation was not expressly mentioned in the show-cause notice did not preclude the authority from examining whether the refund claim was time-barred or not, which was a mandatory requirement under Sec.11B of the Act.
22. As regards unjust enrichment, we find that ONGC did not furnish any documents to show that the burden of service tax had not been passed on to any other person. Therefore, justifiably, the Asstt.Commissioner held the refund claim to be barred by unjust enrichment. Yet another ground raised in the show-cause notice was that any particulars of utilization of CENVAT credit had not been furnished by the claimant. Any utilization of CENVAT credit of the service tax in question by ONGC for payment of duty of excise on their excisable products or for payment of service tax on any output service would also be relevant to the question whether the service tax burden was passed on to any other person. Apparently, the Asstt.Commissioner did not attempt any study on this aspect. The ld.Commissioner(Appeals) chose to affirm the views of the Asstt.Commissioner without independent application of mind.
23. We have already referred to Order-in-Original No.83/2008 dated 8.4.2008 passed by the Asstt. Commissioner of Service Tax, Division I, Mumbai in relation to certain refund applications filed by M/s. CGG Veritas / M/s. CGG Marine/CGG Services . We are told by the ld.counsel that Order-in-Original No. 83/2008 ibid pertains to refund claims filed by the service provider in the instant case, namely M/s. CGG Marine. From the said Order-in-Original, it appears that two refund applications of M/s. CGG Marine were considered by the Asstt.Commissioner, one for Rs. 7,44,40,257/- and the other for Rs. 32,64,75,333/-. The Asstt.Commissioner rejected the first claim of M/s. CGG Marine under Sec.11B of the Act read with Sec.83 of the Finance Act, 1994. There is no discussion in his order in relation to the second claim. However, in para 2(b) of his order, the Asstt.Commissioner noted that the assessee (M/s. CGG Marine) was seeking refund of Rs. 7,44,40,257/- only and that ONGCs claim for refund of Rs. 32,64,75,333/- had been rejected by his predecessor- in- office vide Order-in-Original No.23/08 dated 23.1.08, which is part of this case. A doubt still lingers as to what happened actually to the refund claim of M/s. CGG Marine for Rs. 32,64,75,333/-. Was that claim withdrawn by the claimant ? Or, is it still pending with the Asstt.Commissioner ? Answers to these questions must necessarily have bearing on one crucial question of fact which is involved in the present case and has to be considered inter alia by the Asstt.Commissiioner pursuant to this order. That crucial question of fact is whether the service tax amount was, in fact, reimbursed by ONGC to M/s. CGG Marine. Nowhere in the present records is there any mention of the date or other particulars of such reimbursement, apart from a bold averment that the amount was reimbursed. This is not enough. Before proceeding to deal with ONGCs refund claim, the Asstt.Commissioner has to satisfy himself that the service tax amount of Rs. 32,64,75,333/- paid by M/s. CGG Marine was, in fact, reimbursed to them by ONGC. If, in fact, there was no such reimbursement of the amount by ONGC, the Corporation cannot claim any refund of the tax under Sec.11B of the Act. It is for the appellant to establish that the aforesaid amount was, in fact, reimbursed by them to M/s. CGG Marine, which is a pre-requisite for the Asstt.Commissioner to take up ONGCs refund claim for consideration.
24. Those decisions cited before us which are relevant to the issues to be settled by the adjudicating authority will have to be considered by that authority.
25. For all the aforesaid reasons, we have found this case to be fit for remand to the original authority. Accordingly, we set aside the orders of the lower authorities and allow this appeal by way of remand to the Asstt.Commissioner for fresh adjudication of the refund claim in accordance with law and having regard to the relevant observations contained herein, after giving the claimant a reasonable opportunity of adducing documentary evidence and of being personally heard.
26. The counsel for the appellant, at this stage, prays that the Asstt.Commissioner be directed to dispose of the matter within a time frame. The JCDR has no objection. In the circumstances of this case, we are also of the view that the case should be disposed of without unreasonable delay. The Asstt. Commissioner is directed to pass final order within six months from the date of receipt of a certified copy of this order.
27. The appeal is allowed by way of remand.
(Pronounced in court) Sahab Singh Member(Technical) P.G.Chacko Member(Judicial) pv 20