Customs, Excise and Gold Tribunal - Tamil Nadu
Eid Parry (India) Ltd. vs Cce on 18 May, 2007
Equivalent citations: [2007]10STJ195(CESTAT-CHENNAI), [2007]10STT278
ORDER
1. This application filed by the appellants is for out-of-turn disposaltheir appeal. After hearing both sides and considering their submissions, I am inclined to dispose of the appeal itself, having regard to the fact that the issue arising in this case is already covered by a decision rendered by this Bench in the appellants' own case. Accordingly, after allowing the application, I proceed to deal with the appeal.
2. This appeal is against a demand of service tax on Goods Transport Operators' (GTO) service received by the appellants during the period 16.11.97 to 1.6.98. The amount of tax was paid on 14.11.03, within the time limit prescribed under Rule 71A of the Service Tax Rules, 1994. Such payment was made upon self-assessment done in the relevant tax returns (in Form No. ST-3B) filed on the said date. "UNDER PROTEST" was endorsed on these returns. In addition to this, the appellants submitted a letter to the jurisdictional Superintendent of Central Excise on 11.11.03, wherein all their legal contentions were raised along with protest. The assessee filed a refund claim on the ground that, in view of the apex court's judgment in the case of L.H. Sugar Factories Ltd. 2005 (187) ELT 5 (SC), they were entitled to refund of the service tax paid by them under protest. The department issued two show-cause notices, one for rejecting the refund claim and the other for appropriating the above payment towards demand of tax. Both these proposals were upheld by the original authority in a common order, which was sustained by the Commissioner (Appeals). Hence the present appeal.
3. I find that the basic issue is whether the appellants are entitled to refund of the service tax paid by them in respect of GTO service received during the period 16.11.97 to 1.6.98. This issue is already covered against them by the decision of this Bench in Commissioner v. E.I.D Parry India Ltd. 2006 (4) STR 585 (Tri.-Chennai). That order is reproduced below:
This appeal of the department is against dropping, by the lower appellate authority, of demands of service tax on "Goods Transport Operators Service" and "Clearing & Forwarding Agents Service" received by the respondents during the period 16-11-97 to 2-6-98 and 16-7-97 to 16-10-98 respectively. The amount of tax on the two services were paid on 13-11-2003, within the time limit prescribed under Rule 7A of the Service Tax Rules, 1994. Such payments were upon self-assessment done in the relevant tax returns (in Form No. ST-3B) filed on the same date. "UNDER PROTEST" was endorsed on these returns. In addition to this, the respondents submitted a letter to the jurisdictional Superintendent of Central Excise on 13-11-2003 itself, wherein all their legal contentions were raised and finally their protest was registered thus:
Accordingly, we enclose a return in Form-ST-3B UNDER PROTEST. We are paying the tax and filing return UNDER PROTEST WITHOUT PREJUDICE TO OUR RIGHT TO CONTEST THE DEMAND AND WITHOUT PREJUDICE TO OUR RIGHT TO CLAIM REFUND OF TAXES NOW PAID, AT A FUTURE DATE.
2. Today, learned SDR submits that the respondents can no longer rely on the Supreme Court's judgment in Commissioner v. L.H. Sugar Factories Ltd. 2006 (3) S.T.R. 715 (S.C.) : 2005 (187) E.L.T. 5 (S.C.) inasmuch as, in the case of Gujarat Ambuja Cements Ltd. v. UOI , their lordships, while upholding the constitutional validity of the retrospective amendments brought to the Finance Act, 1994 and the Service Tax Rules, 1994 by the Finance Act, 2003, held that a recipient of 'goods transport operator service' for the period from 16-11-97 to 2-6-98 should be deemed always to have been a person liable to pay service tax on such service. It was so held in respect of persons receiving 'clearing and forwarding agents service' also. It was in terms of the amended provisions that the respondents filed their returns and paid the tax self-assessed. They are not entitled to refund of such tax. In this connection, the reliance is placed on the Tribunal's decision in J.K. Industries Ltd. v. CCE 2006 (3) S.T.R. 14 (Tri. - Del.) as also on the decision in the case of Ashok Leyland Ltd. v. CCE, Jaipur 2006 (4) S.T.R. 313 (Tri. - Del.) Ld. counsel reiterates the contentions raised by his clients in the 'protest letter' submitted to the Superintendent of Central Excise as also the written submissions dated 18-8-2006 filed by the party. The attempt made by the respondents is to establish that the ratio of the decision in L.H. Sugar Factories case would still govern the present case.
3. After considering the submissions, we are unable to agree with the submissions made by learned Counsel. The facts of this case are quite similar to those of the cases of J.K. Industries Ltd. (supra) and Ashok Leyland (supra) cited by learned SDR. In those cases, it was found that Service tax returns had been filed within the time stipulated under the Finance Act, 1994 as amended by the Finance Act, 2003 and that the assessment made therein was self-assessment. The duty paid pursuant to such assessment was held to be not refundable. Accordingly, the refund claims in question were rejected. In the present case, it is seen that the returns were filed under protest, the assessments were made under protest and the payments of tax were also made likewise. None of these is a valid protest. A return filed in terms of a statutory provision is one filed voluntarily in the eye of law. Any protest in this regard is invalid. Every self-assessment is voluntary and there is no scope for protest in this regard. Payment of tax so assessed is also a voluntary payment. Hence the protest, registered by the assessee was lightly ignored by the original authority. When the impugned order was passed by the Commissioner (Appeals), the Apex Court's judgment in Gujarat Ambuja Cements (supra) was available but not cited before him. His order following the Apex Court's judgment in L.H. Sugar Factories (supra) cannot be sustained.
4. For the reasons already recorded, the impugned order is set aside and this appeal is allowed.
4. In the result, the impugned order is sustained and this appeal is dismissed.
(Dictated and pronounced in open court)