Custom, Excise & Service Tax Tribunal
M/S. Abt Limited vs Cce, Coimbatore on 17 December, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
ST/41310/2013
(Arising out of Order-in-Appeal No.121/2013 dated 27.3.2013 passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals), Coimbatore)
M/s. ABT Limited Appellant
Vs.
CCE, Coimbatore Respondent
Appearance Shri S. Durairaj, Advocate, for the Appellant Shri M. Rammohan Rao, DC (AR) for the Respondent CORAM Honble Shri D.N. Panda, Judicial Member Honble Shri R. Periasami, Technical Member Date of Hearing: 17.12.2014 Date of Decision: 17.12.2014 Final Order No. 40991/2014 Per D.N. Panda The precise question in this appeal is whether the ticket issued by the appellant showing Conducted Tour shall ipso facto disentitle appellant to the exemption granted by Notification No. 20/2009-ST dated 7.7.2009 read with the Corrigendum issued by MF (DR) F. No. 334/8/2009/TRU dated 31.8.2009 and statutory provisions enacted in section 75 of Finance Act, 2011.
2. The appellant submits that tickets issued by appellant were no doubt bearing an inscription that Conducted Tour Seat but in reality there was no tour conducted. Such tickets were issued to passengers going from one point to another and the appellant did not conduct tour even though it was a tourist permit holder of a vehicle. When tourist permit holder vehicles were also permitted for public transport appellant is entitled to the benefit granted by Notification No. 20/2009-ST dated 7.7.2009 read with the Corrigendum issued by MF (DR) F. No. 334/8/2009/TRU dated 31.8.2009 and the provision enacted in section 75 of Finance Act, 2011.
3. It was further submitted by appellant that although the notification came into force from 7.7.2009 that was amended by section 75 of the Finance Act, 1994 enacting that the benefit of that notification shall be deemed to have been in force from 1.4.2000 at all material times. Sub-section (2) of the said section, enacted that service tax ought not have been collected and sub-section (3) thereof states that by virtue of the provision contained in sub-section (2) of section 75, the tax, if any collected when ought not have been collected were to be refunded within six months from the date on which the Finance Bill, 2011 was assented by President of India.
4. On the aforesaid premise, appellant submits that the refund claim before learned adjudicating authority beingis admissible to it.
5. On the other hand, Revenues contention is that undisputedly the appellant was holder of tourist permit in respect of the vehicle used and the ticket shows conducted tours which establish truth of conduct of tour using tourist vehicle by the appellant. Therefore, learned adjudicating authority rightly denied the exemption pleaded to have been granted by aforesaid notification and statutory provisions.
6. Heard both sides and perused the records.
7. Except interpreting the provisions of the Motor Vehicles Act, there is no material on record to show that appellant possessing the tourist vehicle permit had conducted tours issuing the ticket aforesaid. This does not deny the appellant to get the exemption granted by the notification and the statute. No doubt, conducted tour shall not get exemption under the notification but a point to point operation of the vehicle, even by the tourist vehicle is entitled to the exemption as envisaged by aforesaid notification.
8. In absence of any contrary evidence on record as to conduct of tour by the appellant in terms of the tickets aforesaid, the appeal succeeds. But the sub-section (3) of section 75 of Finance Act, 2011 read with the Explanation thereunder requires the eligible refund to meet the test of unjust enrichment. Therefore, the matter has to go back to the learned adjudicating authority on this limited point to examine whether the appellant has crossed the bar of unjust enrichment. If he is satisfied, he shall grant refund. Otherwise, he shall pass an appropriate order.
9. In the result, the appeal is remanded on the limited point as above.
(Dictated and pronounced in open court)
(R. PERIASAMI) (D.N. Panda)
Technical Member Judicial Member
Rex
2
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