Customs, Excise and Gold Tribunal - Delhi
Commissioner Of C. Ex. vs Indian Ispat Works (P) Ltd. on 1 February, 2006
Equivalent citations: 2006(105)ECC128, 2006(106)ECC128, 2006(110)ECC128, 2006ECR128(TRI.-DELHI), 2006(199)ELT112(TRI-DEL)
ORDER M.V. Ravindran, Member (J)
1. The revenue is in appeal in all the three appeals against order-in-appeal dated 24-5-2004, wherein the Commissioner (Appeals) allowed the refund claim rejected by Order in Originals.
2. The relevant facts that arise for consideration are that the respondents had availed the Service of the Goods Transport Operators for the period 16-7-97 to 16-10-98. The appellants were Small Scale Industries and deposited the Service Tax on the insistance and direction of the department. Notification No. 43/97-S.T., dated 5-4-1997 was amended retrospectively for providing exemption from levy of Service Tax for the Small Scale Industries registered with the state government. Hence the respondent filed the refund claim with the authorities on the ground that the amount paid by them was not Service Tax and is not payable by them. A show cause notice was issued and on adjudication, the refund claim for the period 16-11-97 to 1-6-98 was allowed and the refund claim pertaining to the period 16-7-97 to 16-10-98 and 2-6-98 to 16-10-98 was rejected on the ground that they are time barred and validating Section No. 160 provided time limit only for the period during 16-11-97 to 1-6-98. On are appeal the appellate authority held that the refund is liable to be sanctioned to the respondent. Hence this appeal.
3. The learned Department Representative submits that the Respondent have paid the amount as Service Tax and are hence required to file the refund claim within the time period as provided in the statute. He relies upon the following Case Laws:
(i) Miles India Ltd, Baroda v. Appellate Collector of Customs, Bombay
(ii) Rishi Chemical Works Pvt. Ltd. v. CCE, Meerut .
(iii) Jumax Foam Pvt. Ltd. v. Union of India .
4. None appeared for the respondents but there is a request to decide the matter on merits.
5. Considered the submission of the DR and perused the records. I find that the Respondents are S.S.I., and were availing Service of the G.T.O. The department directed them to deposit the Service Tax, though the same was not payable by the respondent. The respondents contention, it seems were correct, as Section 160 of Finance Act, 2003, amends the Notification No. 43/97-ST retrospectively, in other words the respondents were not taxable for the Service availed by them from the G.T.O. The respondents were not required to pay the amount, as tax, for the whole period i.e. from 16-7-97 to 16-10-98. The department has allowed the claim of the respondents for the period 16-11-97 to 1-6-98, but rejected the refund claim for the previous period and subsequent period as time barred. The rejection of the claim of refund is wrong as it can be seen from the records, that the amount paid by the respondents is not a tax, but an amount collected by the department without any authority of law.
Division Bench of Tribunal in the case of Hexacom (I) Ltd. v. CCE, Jaipur has held as follows:
It is not in dispute that no service tax was leviable during the period in question. Therefore, whatever payment was made did not relate to service tax at all. It was merely an erroneous collection by DOT and payment by the appellants. Therefore, provisions relating to refund of service tax, including those relating to unjust enrichment, cannot have any application to the return of the amount in question.
The learned Commissioner (Appeals) has also correctly relied upon the Hexacom (I) Ltd (supra) case and come to conclusion that the respondents are eligible for refund. The case laws relied upon by the learned DR, discuss about the refund claim of the amount of paid as duty and do not address to the issue of amount not payable as Tax. Hence they are not relevant for the issue in this case.
6. Under the circumstances, I do not see any reason to interfere with the order-in-appeal dated 24-5-2004. The departments appeal is dismissed.
(Pronounced in open Court)