Custom, Excise & Service Tax Tribunal
M/S Jindal Steel & Power Limited vs Cc & Ce, Raipur on 20 August, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi, Court No. I Date of hearing/decision: 20.08.2015 For Approval and Signature: Honble Mr. Justice G. Raghuram, President 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Service Tax Appeal No. 50502 of 2014 (Arising out of order in appeal No. 176(ST)/RPR-I/2013 dated 09.10.2013 passed by Commissioner (Appeals-I), Customs & Central Excise, Raipur). M/s Jindal Steel & Power Limited Appellant Vs. CC & CE, Raipur Respondent
Appearance:
Shri H. V. Ghirnikar, C.A. for the Revenue Ms. Suchitra Sharma, Commr. (AR) for the Respondent Coram: Honble Mr. Justice G. Raghuram, President Final Order No. 52675 / 2015 Per: Justice G. Raghuram:
Heard the ld. Consultant for the appellant and ld. AR for the respondent.
2. This appeal illustrates the negative approach of Revenue in dealing with claims fir refund. The appellant / assessee who filed a refund claim was driven from one Officer to another for granting refund of service tax remitted by it to the service provider, for no ostensible reason.
3. The appellant is an integrated steel plant operating within the jurisdiction of the Commissioner, Central Excise, Raipur and had engaged M/s Gannon Dunkerly and Co. Limited to execute works relating to construction of a bridge over a railway line for providing access to the appellants factory premises. During 17.05.2011 to 12.08.2011 the service provider M/s Gannon Dunkerly & Co. Limited had remitted service tax on the basis that it had provided the taxable Commercial or Industrial Construction Service and charged the amount of service tax to the appellant. The appellant, after realising that the definition of Commercial or Industrial Construction Service excludes construction of a bridge, filed the refund claim on 21.03.2012 before the Deputy Commissioner, Service Tax Division-II, Delhi claiming a refund of Rs.4,26,305/-, constituting the service tax remitted by the appellant towards the non-taxable service of construction of a bridge, provided by M/s Gannon Dunkerly & Co. Limited. On 20.04.2012, the Deputy Commissioner, Delhi returned the refund claim on the ground that the appellant was not within his jurisdiction and therefore he had no power to grant refund. The assessee/appellant again represented to the Deputy Commissioner, Delhi for granting refund which was again rejected on 09.08.2012 and for the same reason.
4. Thereafter, the appellant then preferred a claim for refund before the Assistant Commissioner, Central Excise, Bilaspur on 22.08.2012 after a downward revision of its claim to Rs. 3,06,313/-. The Assistant Commissioner, Bilaspur issued a show cause notice dated 18.10.2012 proposing the rejection of the claim on two grounds (i) on the bar of limitation; and (ii) since services were provided by Gannon Dunkerley & Co. Limited which was within the jurisdiction of the Delhi Commissionerate, the Bilaspur Commissionerate had no jurisdiction. Eventually, the Assistant Commissioner, Bilaspur passed an order dated 12.12.2012 rejecting the claim for refund both the grounds as proposed in the show cause notice.
5. Aggrieved, the appellant preferred an appeal which was also rejected by the ld. Commissioner (Appeals), Central Excise, Raipur by the impugned order dated 09.10.2013. It requires to be noticed that the impugned order allowed the appellants contention on the aspect of the bar of limitation since the appellant had filed its initial refund claim within the prescribed period, before the Deputy Commissioner, New Delhi on 21.03.2012. The ld. appellate Commissioner however concluded that the refund claim cannot be entertained since the provider of the service was within the jurisdiction of the Delhi Commissionerate and therefore the refund claim should be entertained by the Delhi Commissionerate and not the Bilaspur Commissionerate.
6. The fact that the recipient of the service is also entitled to file a claim for refund is no longer res-integra. The issue stand concluded by the Constitution Bench decision in Mafatlal Industries Limited vs. Union of India 1997 (89) ELT 247 (SC). This decision was followed in Indian Farmer Fertilizer Co-op. Ltd., vs. CCE, Meerut-II 2014 (35) STR 422 (Tri. Del.). If the appellant which is a recipient of a service which is admittedly not taxable files a claim for refund within the prescribed period of limitation, it is axiomatic that it is entitled to do so before the Commissionerate under whose jurisdiction it pursues its taxable activities, business or is a registrant; or before the Commissionerate having authority over the provider of the service. That would be a matter of a legitimate choice for a claimant of refund. In this case, the appellant had initially filed a claim before the Delhi Commissionerate which rejected the same on the ground that it had no jurisdiction since the appellant was pursuing business outside its jurisdiction. The Bilaspur Commissionerate also rejected the refund claim on the ground that the provider of the service is not within its jurisdiction. The rejection by both Commissionerates is in my view unsustainable.
7. Since the appellant is the recipient of the service it is entitled to file a refund claim. Since the impugned order rejects the claim arbitrarily on the point of jurisdiction, a case is prima-facie made out for award of costs. However, the ld. DR has fairly conceded the position that the appellant is entitled to refund in totality the circumstances since the claim is found to be within the period of limitation and the appellant initially filed its refund claim before the Delhi Commissionerate and subsequently before the Bilaspur Commissionerate as well.
8. In view of the concession fairly and gracefully made and on the aforesaid analyses, the appeal is allowed. The appellant is entitled to refund as claimed with consequential benefits, if any, in accordance with law. No costs.
(Justice G. Raghuram) President Pant