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2019 (8) TMI 1592 - MADHYA PRADESH HIGH COURTMaintainability of appeal - appropriate Forum - Section 35G(1) of the Central Excise Act, 1944 - whether the issue relates to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment as would bar jurisdiction of this Court? HELD THAT:- In the case at hand, the controversy does not relate to either classification of service availed/provided, nor the rate at which the service is availed/provided. Because the transmission charges are filed by the Petroleum and Natural Gas Regulatory Board. The controversy as to whether on the basis of the alleged credit note given by the service provider, M/s GAIL, the assessee is entitled for the refund de hors stipulations contained in Section 11B and Section 12B of 1944 Act - the preliminary objection qua sub-section (1) of Section 35G of 1944 Act that the appeal is not tenable is negatived. Also, the assertion of the Noticee that they have themselves borne the incidence of tax is not acceptable as not supported by documentary evidence, therefore, refund cannot be granted to the Noticee. The CESTAT has cryptically decided the appeal which is apparent from paragraphs 6 and 7 of the impugned order. By observing that since tariff is managed by the statutory body to be followed by the gas companies and the service tax payment is provisional and therefore with the determination of final rate, a right accrues in the assessee; therefore, the limitation is to be construed accordingly. Apparently, the Tribunal glossed over the fact that the M/s GAIL had not sought a provisional assessment and it was not its case that on final assessment that there is a determination that the service tax paid is on the higher side and therefore it should revert to the receiver of service. The Tribunal has grossly erred in law in holding that the claim for refund rejected for the reason being time barred, should be treated as within time and the "claims are to be processed", which deserves to be and is hereby set aside - Even shifting the burden on the department to find out as to whether the assessee has not passed the burden of tax on the final consumer cannot be countenanced in the given facts of present case. The order passed by the Assistant Commissioner and its affirmation are upheld - Appeal allowed.
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