Custom, Excise & Service Tax Tribunal
M/S Kaira District Co Operative Milk ... vs C.C.E. & C. Vadodara on 6 January, 2017
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ~~~~~ Appeal No : ST/12013/2015 (Arising out of OIA No. VAD-EXCUS-003-APP-225/2015-16 passed by Commissioner (Appeals) of central Excise, Customs and Service Tax, Vadodara) M/s Kaira District Co Operative Milk Producers Union Ltd : Appellant (s) Versus C.C.E. & C. Vadodara : Respondent (s)
Represented by:
For Appellant (s) : Shri Aditya Tripathi, Shri S. Bissa, Advocates For Respondent (s):Shri Alok Srivastava, Authorised Representative CORAM :
Dr. D. M. Misra, Hon'ble Member (Judicial) Date of Hearing / Decision : 06.01.2017 ORDER No. A/10019 / 2017 dated 06.01.2016 Per : Dr. D. M. Misra Heard both sides.
2. This is an appeal filed against OIA No. VAD-EXCUS-003-APP-225/2015-16 passed by the Commissioner (Appeals) of central Excise, Customs and Service Tax, Vadodara.
3. Briefly stated the facts of the case are that the appellants are engaged in the production of Milk and Milk Products. During the period 01.10.2012 to 31.01.2013, they have distributed Milk and Milk products by utilizing the transport service of Indian Railways. The Railways had collected the service tax on the said transport services from the Appellant and paid it to the Revenue. The transportation milk products were exempted from service tax by virtue of Notification No. 25/2012-ST dated 20.06.2012 and since the amount of service tax was inadvertently paid by Railways and collected from the appellant, Railways provided the necessary NOC to the appellant for filing refund claim of the service tax paid. A show cause notice was issued to the Appellant proposing denial of said claim on merit as well as the ground of unjust enrichment. On adjudication, the refund claim was sanctioned, but, transferred to the Consumer Welfare Fund observing that the appellant could not provide sufficient evidence in establishing the fact that the incidence of service tax paid and claimed as refund has not been passed on to the customers/other persons. Aggrieved by the said order, the appellant filed an appeal before the Ld. Commissioner (Appeals), who inturn, rejected their appeal. Hence, the present appeal.
4. Ld Advocate Shri Aditya Tripathi for the appellants submits that even though before the Ld. Commissioner (Appeals), they have categorically submitted that the MRP at which the milk and milk products sold through out India remained the same, before and after discharging the service tax, leading to the conclusion that the incidence of service tax was not passed on to any person, but, the same was not considered by the Ld. Commissioner (Appeals). He further submits that before the Ld. Commissioner (Appeals), even though they referred to the Chartered Accountants Certificate, which was also produced before the Adjudicating Authority certifying that the incidence of service tax has not been passed on to any person, however, the same was not taken into consideration. The Ld. Advocate on being asked by this bench to produce a copy of said Chartered Accountants Certificate earlier produced, he has expressed inability stating that the same is not available now on record, but, he placed a fresh Chartered Accountants certificate issued on 24.12.2016, in support of their claim that the incidence of service tax has not been passed on to the customers/other persons.
5. Per contra, the ld. AR for the Revenue submits that since the Chartered Accountants Certificate now produced alongwith copies of tax invoices, were not before the authorities below, therefore, it is difficult to say whether the incidence of duty have been passed on or otherwise by the appellant to their customers or any other persons. He submits that he has no objection in remanding the case to the Adjudicating Authority, but, the appellant be directed to produce other supporting documents/evidences like balance sheet, profit and loss account, alongwith Chartered Accountants Certificate and any other documents that would be required by the Adjudicating Authority in the denovo proceeding.
6. In his rejoinder, the Ld. Advocate undertakes to produce all necessary documents before the Adjudicating Authority to establish the fact that incidence of service tax paid has not been passed on to the customers/other persons.
7. I find that the present controversy rests on the fact whether the incidence of service tax paid on GTA service for transportation of Milk and Milk products by the Indian railways passed on to the customers/other persons. Both the authorities below rejected the claim of the Appellant on the ground of insufficiency of evidence. The Chartered Accountants Certificate now produced needs to be scrutinized alongwith supporting evidences that would be produced by the appellant before the Adjudicating Authority. In the result, the impugned order is set-aside and the matter is remanded to the Adjudicating Authority to decide the issue of unjust enrichment afresh in the light of evidences on record and that would be produced by the appellant in the denovo proceedings. Needless to mention that a reasonable opportunity of hearing be extended to the appellant.
8. Appeal is allowed by way of remand.
(Dictated and pronounced in the Court) (D. M. Misra) Member (Judicial) G.Y. ??
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