TMI Blog2019 (5) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... vices. By putting these services under exclusion category in the Notification it is clear that these category of taxable services are not being exempted - demand do not sustain. Advertisement Services - Scope of SCN - HELD THAT:- Commissioner has considered the issue by considering the demand under the taxable category defined by Section 65(105)(zzzzm) viz sale of space or time for advertisement . He has after referring to the submissions made and definition as provided by Section 65(105)(zzzzm), held the tax to be demandable in that category. Clearly Commissioner has travelled beyond the show cause notice. Since no demand has been made in the show cause notice under this category we are not in position to sustain the order of Commissioner in this respect - Demand do not sustain. Time limitation - Interest - penalties - HELD THAT:- There are no merits in the submissions made by the appellant against the order of Commissioner, in respect of limitation, interest and penalties - these charges can now be sustained only in respect of the demands which can be sustained on merits i.e. in respect of the Chartered Bus Services. Refund of service tax - time limitation - HELD THAT:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows: ORDER i. I hereby confirm the demand amount of ₹ 4,77,23,920/- (Rupees Four Crore Seventy Seven Lakhs Twenty Three Thousand Nine Hundred and Twenty Only) under Section73(2) of the Finance Act, 1994. ii. Recover of interest at the appropriate rate applicable during the relevant period of time, on the amount confirmed at i) above, from the date it became due till the date of payment, is hereby confirmed under Section75 of the Finance Act, 1994. iii. Penalty of ₹ 200/- per day or 2% of tax payable, per month whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax, is imposed under Section 76 of the Finance Act, 1994, subject to the maximum, specified in Section76 of the Finance Act, 1994 as it existed at the material time, for failure to pay appropriate service tax. iv. For failure to obtain Registration for Advertisement Service as required under Section69 of the Finance Act, 1994 read with Rule 4 of the Service Tax Rules, 1994 a penalty of ₹ 5000/- or Rs Two Hundred everyday during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94, a penalty of ₹ 5000/- is imposed under the provisions of Section 77 of the Chapter V of the Finance Act, 1994. vi. A penalty of ₹ 7,94,292/- (Rupees Seven Lakhs Ninety Four Thousand Two Hundred and Ninety Two Only) i.e. equal to the amount of Service Tax short paid by the assessee, under Section78 of the Finance Act, 1994. Further if the assessee pays the demand amount confirmed as per i) above along with the interest payable thereon as per ii) above within thirty days from the date of communication of the Order, the amount of penalty liable to be paid by the assessee shall be 25% of the demand amount confirmed at i) above, provided further that the reduced penalty is also paid along with the confirmed amount and interest as mentioned above. 1.4 By the order in appeal dated 22.03.2012, Commissioner (Appeals) IV Central Excise Mumbai Zone I, (Appeal No ST/466/2012) upheld the order in original dated 22.05.2009 of the Assistant Commissioner Service Tax Division IV Mumbai rejecting the refund claims filed by the appellant. By his order Assistant Commissioner has held as follows: 7. In light of the findings as abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transportation of passengers excluding tourism, conducted tours, charter or hire services were exempt from whole of service tax in other words the chartered bus service under tour operator s services continued to be taxable even after 06.07.2009. 2.5 Even though the services provided by the appellant became taxable from 01.04.2000 they did not obtained the registration, nor filed the return and neither paid the service tax due on the services provided by them. A show cause notice dated 30.08.2004 was issued to them by the Deputy Commissioner Central Excise Mumbai V, asking them to show cause as to why service tax amounting to ₹ 7,94,292/- required to be paid by them for the period 2002-03 should not be demanded and recovered from them in terms of Section 73 (1)(a) of the Finance Act, 1994. 2.6 They paid the service tax amounting to ₹ 2,86,94,534/- (Rupees Two Crore Eighty Six Lakhs Ninety Four Thousand Five Hundred Thirty Four Thousand Only) only for the period 2005-06 and 2006-07 along with interest due amounting to ₹ 22,02,791/- (Rupees Twenty Two Lakhs Two Thousand Seven Hundred and Ninety One Only). 2.7 For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.04.2009. ii. exemption under the said notification was initially granted to contract carriage but by corrigendum issued vide F No 334/08/2009-TRU dated 31.08.2009 the same was granted to tourist vehicles. This exemption has vide Section 75 of Finance Act, 2011 made applicable retrospectively from 01.04.2000. iii. It was clarified as per para 12.7 of TRU Circular No 334/3/2011-TRU dated 28.02.2011 that the said exemption has been granted retrospectively from 01.04.2000, in respect of transportation of passengers in a vehicle bearing contract carriage and tourist vehicle permit. iv. The circulars issued are binding as has been held by various authorities as follows: Deenabandhu Sahu and Others [AIR 1976 SC 1561] K P Vergheese [AIR 1981 SC 1922] Keshavji Ravji Co [AIR 1991 1806] Vasudeeo V Dempa [1996 (88) ELT 638 (SC)] Jagat Dalal (P) Ltd [1996 (88) ELT 638 (SC)] Bengal Iron Corporation Anr [1993 (66) ELT 13 (SC)] Ranadey Micronutrients [1996 (87) ELT 19 (SC)] Poulose Mathan [1997 (90) ELT 264 (SC)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting the same from passengers. Subsequently by Finance Act, 2011 these Services have been exempted from payment of tax retrospectively from 01.04.2000. xiii. They had no criminal intent or mensrea to evade payment of tax hence penalty under Section 78 is not justified. {Pepsi Foods Ltd 2010 (260) ELT 481 (SC)]. Also penalty under Section 76 and 78 should not have been imposed simultaneously as held in case of First Flight Courier [2011 (22) STR 622 (P H)] 4.1 We have heard Shri Bharat Raichandani, Advocate for the Appellant and Shri Roopam Kapoor, Principal Commissioner, Authorized Representative for the revenue. 4.2 Arguing for the appellants learned counsel submitted that- Issue in respect of point to point transportation of passengers in bus is covered by the following decisions i. City Travels [2015-TIOL-1619] ii. Benzy Travels [2017 (49) STR 535] iii. A Manimegalal [2014 (330 STR 412] iv. ABT Limited [2015 (38) STR 1157] v. Ideal Travels [2012 (28) STR 257] vi. Sharma Transports [2013 (29) STR 249] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , possession and control of charterer. Thus there is transfer of right to use the buses which is deemed sale in terms of Article 366 (29A) of the Constitution of India and hence no service tax could be demanded, in view of decisions as follows: Krishna Chandra Behera and Another [1991 (083) STC 0325 ORI] Sri Ram [2009 (020) VST 0747 (ALL)] HLS Asia Ltd [2007 (8) VST 314 (Gauhati)] Rashtriya Ispat Nigam Limited [2002 (3) SCC 314} BSNL [2006 (3) STT 245 (SC)] Since providing the buses to charterer is not covered under tour operator services the demand made in respect of this cannot be sustained. Demand made in respect of Advertisement Services cannot be sustained as there is no such head. While Show Cause Notice proposed the demand under Advertising Agency service, Commissioner has confirmed the demand under sale of space or time for advertisement service. A new case cannot b made out against them at the adjudication stage. Since they have paid the entire service tax along with interest, penalty should be set aside. The deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r intrastate transportation of passengers, excluding tourism, conducted tours, charter or hire service , only the services provided by using contract carriage permit have been exempted retrospectively and not the services provided by tourist vehicle with permit . Thus the benefit of exemption would be admissible to the appellants prospectively and shall not be admissible retrospectively with effect from 01.04.2000 Referring to para 6.1 of D O F No 334/13/2009-TRU dated 6th July 2009 he explained that intention of the exemption notification No 20/2009-ST, that said notification was issued to bring on parity the services provided by the private bus operator using busses having contract carriage permit for transportation of passengers on specific interstate or intrastate routes with State Undertaking bus with Stage Carriage Permit on the same route. The purpose of the said notification was not to exempt the services provided by the tour operators providing services in relation to tourism or conducted tours or charter or hire. Tour operator as defined by clause (115) of Section 65 of the Finance Act , 1994, means any person engaged in the busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... z (a) Tour Operator Services (Chartered Bus Booking) (b) Tour Operator Service (Point to Point Bus Service) (c) Advertisement Services. Taxability under the category of Tour Operator Services [category (a) (b)] 5.3 In case of Ideal Travels [2012 (28) STR 257 (TBang)] following has been held: 9. We have given careful consideration to the submissions. After examining the definitions of tour and tour operator under Section 65 of the Finance Act, 1994, we note that the term tour always meant a journey from one place to another irrespective of the distance between such places and that tour operator always meant or included a person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the rules made thereunder. The definition of tour operator was widened w.e.f. 10-9-2004 to mean any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sight-seeing or other similar services) by any mode of transportation. The meaning of tour operator was further expanded w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, it is a fact that the appellant was granted licence to operate buses as contract carriages and not as stage carriages. The contention of the appellant that it operated its buses as stage carriages does not alter the category of its buses from contract carriages to stage carriages. Tour is defined under Section 65(113) ibid as under : - Tour means a journey from one place to another irrespective of the distance between such places. Tour Operator is defined under Section 65(115) ibid as under : - Tour Operator means any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the rules made thereunder; With effect from 10-9-2014, the said definition reads as under : - Tour Operator means any person engaged in the business of planning, scheduling, organizing or arranging tours (which may include arrangements for accommodation, sight-seeing or other similar services) by any mode of transport and includes any person engaged in business of operating tours in a tourist vehicle covered by a permit u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd can be taxed only under entry 54 of the State List. They have placed reliance on a various decisions in this respect. Commissioner has in para 71 to 77 of his order considered the submissions by the Appellant in his order and recorded as follows: 71. The department s contention appears to be correct as the Government made its intention clear to include the Chartered Bus Service in the taxable Tour Operators Service by specifically excluding the same in the Exemption Notification. 72. The assessee in their reply dated 01.12.2011, on this issue has stated that they have given buses on charter basis to various customers. In such kind of arrangements buses are given to the customers along with drivers and cleaners and all expenses relating thereto with regard to diesel oil etc. is borne by them. Under the arrangement buses are under the physical control and possession of the service receiver for the given period of time and the notice is only concerned with the hire charges. 73. In the chartered bus arrangement the assessee is neither concerned with any planning, scheduling etc. of tour for such customers. They simply provide the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or would be responsible for the custody of the machinery while it was on the site did not militate against respondent s possession and control of the machinery. 75. The Hon ble Supreme Court of India in the case of Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 STT 245 (SC), eloquently described the determinative test to decide the nature of transaction in the cases of transfer of the right to use and held as under: 87. To constitute a transaction for the transfer of the right to use the goods the transaction must have the following attributes : a. There must be goods available for delivery; b. There must be a consensus ad idem as to the identity of the goods; c. The transferee should have a legal right to use the goods-consequently all legal consequences of such use including any permissions or licenses required therefore should be available to the transferee; d. For the period during which the transferee has such legal right, it has to be the exclusion to the transferor this is the necessary concomitant of the plain language of the statute - viz. a transfer of the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on passengers. The learned Counsel argues that a basic error is being committed in this and that is the nature of the tax is being decided on the basis of the measure of the tax . He points out that provisions in Section 67(m) and (n) are the measures of the tax and the measure of the tax could never be used for deciding the nature of the tax. The learned Counsel relies on the celebrated decision reported in A.I.R. 1961 S.C. 1480 (Sainik Motors case), cited supra, and points out that the principle in that case has been followed throughout right up to the decision in Federation of Hotels and Restaurants case, cited supra, wherein in paragraph 17, the Supreme Court held as under : The subject of a tax different from the measure of the levy. The measure of the tax is not determinative of its essential character or of the competence of the Legislature. In Sainik Motors v. State of Rajasthan (1962) 1 SCR 517; A.I.R. 1961 S.C. 1480, the provisions of a State law levying a tax on passengers and goods under entry 56 of List were assailed on the ground that the State was, in the guise of taxing passengers and goods, in substance and reality taxing the income of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch hotel on hire or lease; or any other services envisaged in that section. The challenge was on the ground that this tax, which was being imposed under Entry 97 of List-I under Article 248 of the Constitution of India was beyond the legislative competence as in fact, this expenditure tax was squarely covered under Entry 62 of List-II which pertained to the taxes on luxuries, including taxes on entertainments, amusements, betting and gambling and also could be covered under entry 54 of List- II as the transaction in question also amounted to sale of food stuff (goods) to the customers. The Supreme Court upheld the validity of the levy of the tax. The Supreme Court accepted that the said tax could have and had distinct aspects . 83. The Apex Court recognised the said distinct aspect . viz., the expenditure aspect of the transaction and held the same to be falling within the Union Power . It held that that aspect had to be distinguished from the aspect of luxury or sale of goods. The following observations in paragraph 19 are apposite : The submissions of the learned Attorney General that the tax is essentially a tax on expenditure and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1 Private bus operators, who operate buses on specific inter-state or intra-state routes, are required to pay service tax as they ply their buses having contract carriage permits and thus fall within the definition of tour operators. On the other hand the State Undertakings run buses, which run on the same route carrying passengers, are not subjected to service tax as these buses bear stage carriage permit . In order to bring parity between the two, the services provided by the tour operators undertaking point-to-point transportation of passengers in a vehicle bearing contract carriage permit is being fully exempted from service tax, provided such transportation is not in 1 Prior to the corrigendum dated 31.08.2009 it read as contract carriage permit relation to tourism or conducted tours, or charter or hire. (Notification No. 20/209-ST dated 07.07.09 refers). 5.9 On the dated when the Notification No 20/2009-ST i.e. 07.07.2009, the exemption notification granted exempted only in respect of services provided by the tour operator having a contract carriage permit, and not by a tour operator having tourist vehicle with permit. It was only subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook . 13. In Black s Law Dictionary Eighth Edition at page 370, meaning of corrigendum is, an error in a printed work discovered after the work has gone to press . 14. In Legal Dictionary along with Foreign Words and Maxims including Latin Maxims by Prafulla C. Pant, Second Edition, Reprint 2007, at page 118, the meaning of corrigendum is, a thing to be corrected, esp. an error in a printed book . 15. This Court has also considered the nature of corrigendum in Commissioner, Sales Tax, U.P., Lucknow v. Dunlop India Limited, 1994 (92) STC 571 and said : In my opinion, Notification No. 4841 is in the nature of a correction (corrigendum) and, therefore, it dates back to the date of the notification corrected thereby, namely, June 11, 1974, on which date Notification No. 3867 was issued. A correction is a correction only when it dates back to the original order or the proceeding as the case may be. It ceases to be correction if it is effective from the date of its issuance; it then becomes an amendment. This intrinsic nature of concept of correction cannot be lost sight of. 16. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urist vehicle with permit in respect of the services specified in the said notification from the date of effect of notification. Retrospective Effect to the Notification 20/2009-ST. 5.12 Section 75 of the Finance Act, 2011 reads as follows: 75. (1) The notification of the Government of India in the Ministry of Finance (Department of Revenue) number GSR 492(E), dated the 7th July, 2009, issued in exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), granting exemption from the whole of service tax leviable under section 66 of that Act to any person by a tour operator having a contract carriage permit for inter-State or intra-State transportation of passengers, excluding tourism, conducted tour, charter or hire service, shall be deemed to have, and deemed always to have, for all purposes, validly come into force on and from the 1st day of April, 2000, at all material times. 5.13 Thus by Section 75 of Finance Act, 2011, the date from which said notification No 20/2009-ST dated 7th July 2009 would have come into effect has been declared as 1st April 2000. Revenue ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by us in para 4.2, supra. 5.16 Commissioner in para 66 to 68 of his order after examining the definition of Contract Carriage has observed as follows: 66. Thus, the essential ingredient of a contract carriage is that it should be a motor vehicle which plies under a contract for a fixed set of passengers, and does not allow any other passenger to board or alight from the carriage at will. Tourist Vehicle can be treated as Contract Carriage if it satisfies the above condition. 67. Now the question comes whether the service provided by the assessee falls in the category of service provided by a tour operator having a contract carriage with a permit for inter-state or intrastate transportation passengers . Shri Sunil Savala, the partner in M/s. Neeta, has stated in his statement dated 01.07.2010, recorded under Section 14 of the Central Excise Act, 1944, read with Section 83 of the Finance Act 1994, that they are operating buses registered under the permit of Tourist Vehicles which transported passengers from Mumbai to various destinations. 68. Further from the various documents produced by the representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 75 of Finance Act, 1994. Thus the order of Commissioner to this extent cannot be upheld. 5.18 In respect of the Services provided in category of Chartered Bus Booking, we find that these services fall within the exclusion category in the said notification. No other exemption has been pointed out which exempts such services. By putting these services under exclusion category in the Notification it is clear that these category of taxable services are not being exempted. Taxability under the category of Advertisement Services [category (c)] 5.19 Para 6 (iv) of the of the Show Cause Notice reads as follows: 6(iv) had also provided advertisement services during the period 2007-08 to 2009-10 and received amount, detailed in Annexure C to this notice, by displaying advertisements of various clients inside their buses but had not declared and added this service in their registration certificate, issued under Section 69 of the Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994. Neither had they made the payment of Service Tax thereon nor filed the ST-3 returns. 5.16 Para 7(iv) reads as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute or the issue of interpretation. Further in Commissioner has in para 84 (v) of his order referred to statement of Shri Sunil Savia and stated v. the had collected Service Tax from their customers from 2009 onwards on the Chartered Bus provided by them under tour operator s services but had not made the payment of Service Tax in the government account, which they shall make immediately after calculating the same. Further in para on the basis of scrutiny of various documents and statement of Shri Sunil Savia, he has in para 85(ii), stated that they had neither made the payment of Service Tax nor filed ST-3 returns of chartered bus services falling under tour operator s service during the period 1.04.2007 to 31.03.2010. However, they had been charging and recovering Service Tax from their clients from 01.04.2009 onwards on their invoices for this service but not depositing the same with government. 5.21 In para 91 of his order after referring to order of tribunal in case of Karnataka Soaps [2010 (25) ELT 62 (TBang)], Century Tiles Ltd [2009 (236) ELT 583 (t-Ahmd)] and Sew Construction Ltd [2011 (022) ETR 666 (T-Del), Commissioner has concluded holding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants had filed five refund claims as detailed in table below claiming the refund of service tax paid by them during the period for which the refunds have been filed. S No Period Date of Filing Date of Payment Amount Rs 1 2002-03 17.10.08 16.08.06, 17.10.06, 17.10.06 7,94,291/- 2 2003-04 17.10.08 22.07.04, 16.10.06, 17.10.06, 17.10.06, 17.10.06 43,39,305/- 3 2004-05 17.10.08 26.07.04, 25.10.04, 12.07.05, 19.07.05, 20.07.05, 26.07.05,05.08.05, 25.08.05 46,69,028/- 4 2005-06 17.10.08 02.12.05, 17.12.05, 27.12.05, 31.03.06, 11.05.06, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their appeal, appellants have challenged the order of Commissioner (Appeal) stating that- i. The learned appellate authority has erred in law and in facts in not appreciating that, the appellant has not collected service tax from the passengers, and the payments for the period 2002-03 to 2006-07 were made under protest and subsequent to the amount received from service receiver and hence the doctrine of unjust enrichment is not applicable to them. ii. The learned Appellate Authority has erred in law and in facts in not appreciating the submission of the appellant wherein is has been stated that the refund claims were premature and therefore to keep the matter in abeyance till the application of refund claim filed in pursuance of Section 75 of FA, 2011 before Assistant Commissioner, Div-IV, Service Tax II Mumbai. iii. The refund claim filed in pursuance of Section 75 of FA, 2011 has been rejected by Assistant Commissioner, Div-IV, Service Tax II, Mumbai vide Order in Original No ST-II/DN-IV/277-R/2012 dated 15/03/2012 and the appellant has filed appeal before the Commissioner (Appeal)-IV, Central Excise against the said OIO on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter collecting the amount of amounts from the service receiver. 8.4 In para 1.5 of their written submissions appellants have stated 1.5 Apart from the above, in the appellants own case, this view has been accepted by the department. The appellant had paid service tax for the period from 2002-03 to 2006-07 during July 2004 to October, 2007 without collecting the same from the customers. Thereafter, the appellants filed 5 refund claims as the service tax was paid under protest. The refund claim was rejected by the Assistant Commissioner vide order dated 22.05.2008. Being aggrieved, the appellant had filed appeal before the Commissioner of Central Excise (Appeals) on 25.08.2009. The said appeal has been recently allowed vide order in appeal dated 28.04.2016 holding that the appellant is entitled for benefit of exemption under Notification No 20/2009-ST. The Commissioner (Appeals) has given detailed finding on the said issue at Para 10 to Para 15 thereof. The said refund claim was filed under section 75(2) of the Finance Act, 2011. The said order has been accepted by Committee of Commissioners vide F No V/ZST-VI/Hq/TRb/OIA Acceptance/16-17 dated 23.08.2016 (refer ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to indicate the amount of duty paid thereon. - Not withstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 12B. Presumption that incidence of duty has been passed on to the buyer. - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 12C. Consumer Welfare Fund. There shall be - (1) established by the Central Government a Fund, to be called the Consumer Welfare Fund. There shall be credited to the Fund, in such manner as may (2) be prescribed, - The amount of duty of excise referred to in sub-section (2) (a) of section 11B or sub-section (2) of section 11C or subsection (2) of section 11D; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by or under this Act, no claim for refund of any duty of excise shall be entertained . Section 11B, as amended by 1991 (Amendment) Act, is similarly worded. Sub-section (1) now provides that a claim for refund has to be filed before the expiry of six months from the relevant date and sub-section (3) declares in emphatic terms that notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2) . Sub-section (2), it may be mentioned, provides the circumstances in which and the grounds on which a refund shall be made, or shall be denied, as the case may be. It is necessary to emphasise that the exclusivity of these provisions relating to refund - and conversely the bar to other proceedings created by them - is specific to the subject of refund and is apart from and in addition to the general bar implicit in the Act or expressed in some of its other provisions, as the case may be. Because the Act creates new rights and liabilities and also pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B, as amended in 1991, has been set out in Para 10 hereinabove. Sub-section (1) of Section 11B says that every claim for refund shall be made before the Assistant Commissioner of Central Excise within six months of the relevant date. The application shall have to be in the prescribed form and manner and shall be accompanied by documentary and other evidence including those referred to in Section 12A to establish that the duty claimed by way of refund has not been passed on by him to any other person. The proviso to sub-section (1) expressly states that pending applications for refund made before the commencement of the 1991 (Amendment) Act shall be deemed to have been made under sub-section (1) of Section 11B as amended in 1991 and that the same shall be dealt with in accordance with sub-section (2). Subsection (2) provides that only in situations specified in Clauses (a) to (f) therein will the refund be granted to the applicant; in all other cases, the amount will be credited to the Fund established under Section 12C. Sub-section (3) declares that notwithstanding anything to the contrary contained in (a) any judgment, decree, order or direction of the Appellate Tribunal or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he excise duty component. He will do so only in the case of a distress sale again. Just because duty is not separately shown in the invoice price, it does not follow that the manufacturer is not passing on the duty. Nor does it follow therefrom that the manufacturer is absorbing the duty himself. The manner of preparing the invoice is not conclusive. While we cannot visualise all situations, the fact remains that, generally speaking, every manufacturer will sell his goods at something above the cost-price plus duty. There may be a loss-making concern but the loss occurs not because of the levy of the excise duty - which is uniformly levied on all manufacturers of similar goods - but for other reasons. No manufacturer can say with any reasonableness that he cannot survive in business unless he collects the duty from both ends. The requirements complained of (prescribed by Section 11B) is thus beyond reproach - and so are Sections 12A and 12B. All that Section 12A requires is that every person who is liable to pay duty of excise on any goods, shall, at the time of clearance of the goods, prominently indicate in all the relevant documents the amount of such duty which will form part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. From the reading of the said section it is evident that tribunal cannot decide the appeal holding the same to be infructuous. In case the same is held infructuous, it would imply that the impugned order is upheld. Thus even by accepting the submissions made by the appellants if the impugned order of Commissioner (Appeal) is upheld, then again it would be upholding the rejection of the refund claim on the grounds of unjust enrichment. That being so the subsequent order of Commissioner (Appeal) of 2016 cannot survive. 8.9 In view of discussions as above we do not find any merits in this appeal filed by the appellant. 9.1 In view of discussions as above:- a. We parti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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