Custom, Excise & Service Tax Tribunal
Avr Storage Tank Terminals P Ltd vs Commissioner Of Central Excise ... on 3 December, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No .27053-27055 / 2013 Appeal(s) Involved: ST/403/2008-SM, ST/404/2008-SM, ST/405/2008-SM [Arising out of Order in Appeal 15-2008 -V-I- ST dated 27/05/2008 and [Arising out of Order in Appeal 16-2008 dated 27/05/2008 and, [Arising out of Order in Appeal 17-2008 -V-I- ST dated 27/05/2008 passed by CCE&C(Appeals), Visakhapatnam. AVR STORAGE TANK TERMINALS P LTD (FORMERLY KNOWN AS AVR & CO) 10-1-30, WALTAIR UPLANDS, VISAKHAPATNAM Appellant(s) M/S.JRE TANK TERMINALS PRIVATE LIMITED., (FORMERLY KNOWN AS M/S.J.R.ENTERPRISES) 10-1-30,WALTAIR UPLANDS,VISAKHAPATNAM Appellant(s) IMC LIMITED 10-1-30, WALTAIR UPLANDS, VISAKHAPATNAM Appellant(s) Versus Commissioner of Central Excise ,Customs and Service Tax - VISAKHAPATNAM-I CENTRAL EXCISE BUILDING PORT AREA VISAKHAPATNAM ANDHRA PRADESH 530035 Respondent(s)
Appearance:
Shri K.PARAMESWARAN FLAT NO.101, SURAJ SADAN, NO.23, II CROSS, (RAMACHANDRA ROAD) GANDHINAGAR, BANGALORE KARNATAKA 560009 For the Appellant Shri R. Gurunathan, Addl. Commissioner(AR) For the Respondent CORAM: Honble Shri B.S.V. Murthy, Technical Member Date of Hearing: 03/12/2013 Date of Decision: 03/12/2013 Order Per : B.S.V. Murthy All the three appeals involve a common issue and even though different orders have been passed, since the issue is common, all are taken together for disposal and a common order is being passed.
2. All the three appellants are engaged in storage of liquid cargo of their customers in tanks and are collecting rent for the said service. During the period September 1999 onwards, the Department took a view that appellants were liable to pay service tax on the rent collected by them on the ground that appellants were rendering C&F agent service. On the instance of the Revenue, appellants obtained registration and from January 2000 onwards, appellants started making an endorsement of service tax paid under protest in the copies of challan while making payment of service tax even though they started paying tax from September 1999 itself. However, the tax was paid with interest only in December 2000 even though appellants took the registration much earlier. Thereafter in December 2000 itself, the appellants also informed the Department that they were making payment of tax under protest vide letters dt. 20/12/2000, which were received by the Revenue on 06/02/2001. The refund claims filed by the appellants were considered and all the claims relating to the period prior to date of receipt intimating the payment under protest were rejected on the ground that procedure prescribed under Rule 233B of the Central Excise Rules, 1944(CER) as they exited during the relevant time was not followed. Unjust enrichment aspect for the period prior to February 2001 was also not considered since the claims themselves were rejected on the ground that the protest was not valid. The question regarding limitation arose because as per the direction, the Board issued a circular under Section 37B taking a view that service was not taxable prior to introduction of storage and warehousing service as a service liable to tax in the statute. This was the reason why the appellant became eligible for the refund.
3. Submitting the case on behalf of the appellants, the learned counsel submitted that the only ground which is required to be considered by the Tribunal is whether the payments made by the appellants by making an endorsement in the challans as service tax paid under protest would be sufficient for the purpose of limitation under Section 11B or following the provisions of Rule 233B and the procedure made thereunder is mandatory. In this regard, he submits that while provisions to Section 11B have been made applicable to service tax matters, the provisions of CER have not been made applicable and therefore the contention of the Revenue that provisions of Rule 233B would apply may not be valid. Further, he also relies upon the decision of the Tribunal in the case of Tamil Nadu Electricity Board Vs. CCE [2008(227) ELT 170 (Tri. Chennai)] wherein a view was taken that endorsement under protest in the challan would be sufficient and that would mean that there was substantive compliance with the requirement of law. He submits that in view of this, the rejection of refund claims on the ground that the procedure under Rule 233B were not followed cannot be sustained. Learned AR relies upon sever decisions to support the submission that refund beyond the limitation period is not admissible. However, both the ARs agree that they do not have any decision on the subject of payment under protest as in the case of Tamil Nadu Electricity Board.
4. I have considered the submissions made by both sides. I find that this Tribunal in the case of Tamil Nadu Electricity Board (supra) in paragraph 2 observed as follows:-
2.?It is submitted by the learned Consultant that the UNDER PROTEST endorsement on the relevant TR-6 challans evidencing payment of duty under protest was not accepted in terms of Rule 233B ibid. According to him, such endorsement should have been accepted as substantial compliance with the rule and accordingly the refund claims ought to have been entertained without the bar of limitation. In this connection, the learned Consultant relies on the Honble Madras High Courts judgment in Commissioner of Central Excise, Chennai-I v. ITC Ltd. [2005 (185) 114 (Mad.)], wherein certain correspondences between the assessee and the department, wherein the assessee claimed the benefit of Notification No. 33/9(o)-C.E. (N.T.) and also claimed the benefit of MODVAT credit, were held to be amounting to protest for purposes of Rule 233B of the Central Excise Rules, 1944. The Honble High Court held that Rule 233B could not be construed in a narrow, pedantic or hypertechnical manner. It was held that, under the said rule, there should only be substantive protest in writing. It is argued by the learned Consultant that the words UNDER PROTEST stamped on the TR-6 challan satisfied this essential requirement. Reliance has also been placed on the Apex Courts judgment in Mafatlal Industries Ltd. v. Union of India [1997 (89) 247 (S.C.)]. It is pointed out that, in para 85 of the said judgment, their Lordships ruled that it was not necessary to particularise the grounds of protest under Rule 233B. The argument is that an endorsement as above on the relevant duty-paying document would substantially satisfy the requirement of Rule 233B. On this point, we have heard learned JDR also. He also would rely on para 85 of the judgement in Mafatlal Industries (supra) and would argue that any person paying duty under protest was required to follow the procedure under Rule 233B strictly. In other words, a letter stating the specific ground of protest alone would satisfy Rule 233B. After considering the submissions, we find ourselves persuaded to accept the argument put forward by the learned consultant, which is eminently supported by the Honble High Courts decision in ITC case coupled with the Honble Supreme Courts ruling contained in para 85 of the judgment in Mafatlal Industries case. We are of the view that, where UNDER PROTEST stamping was there on TR-6 challan evidencing payment of duty under protest, the requirement under Rule 233B should be considered to have been substantially complied with. We note that, in three of the seven cases, the original and appellate authorities accepted the fact that duty was paid under protest as discernible from TR-6 challan, but dismissed the refund claim as time-barred. In these cases (vide S. Nos. 1, 4 & 5 in the synopsis), the original authority need consider the unjust enrichment aspect only.
From the above observation, it is quite clear that the provisions of Rule 233B are not required to be followed and they are not mandatory and the endorsement under protest would be sufficient. Under these circumstances, the submissions by the learned counsel that appellants are eligible for the refund for the payments made prior to February 2001 also which is beyond the normal period of limitation, if the endorsement under protest is not considered.
5. The learned counsel also fairly agrees that the matter has to be remanded to the original adjudicating authority since the unjust enrichment aspect has to be considered by him and further the Chartered Accountants certificate produced by them was not taken into account. Further Commissioner(Appeals) himself has remanded all the refund claims taking a view that the original adjudicating authority should reexamine whether the procedure under Rule 233B have been followed or not. As already observed above, the requirement of procedure under Rule 233B has already been held to be not required and if there is an endorsement in the challan under protest that would be sufficient as held by this Tribunal in Tamil Nadu Electricity Board case. Therefore the only aspect that is left now is examination of unjust enrichment and admissibility of refund claim on the basis of documents which are submitted in accordance with law. All the appeals are decided in above terms and the impugned orders are set aside and the matter is remanded to the original adjudicating authority to decide the matter afresh in line with the observations hereinabove.
(Order dictated and pronounced in open court) B.S.V. MURTHY TECHNICAL MEMBER Raja.
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