TMI Blog2023 (7) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... for production of the document to substantiate his claim on not passing the burden to the ultimate service recipient. The Chartered Accountant certificate has been rejected stating that it is only a secondary evidence. In the absence of any such ground in the show cause notice and opportunity to the appellant to substantiate his claim on the ground of unjust enrichment this portion of order cannot survive - no proper examination of any of the document by which appellant would have substantiate his claim for not having passed the burden on the tax paid to the service recipient has been undertaken by either of the authorities. To give fair opportunities to both the sides this matter on this ground needs to be remanded back to the Original Authority. Appeal is allowed by way of remand - Matter is remanded to the Original Authority for a decision within three months from the date of receipt of this order. - Service Tax Appeal No.70438 of 2017 - FINAL ORDER NO. 70006/2023 - Dated:- 19-7-2023 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) A Request Letter to Decide on Merits, for the Appellant Shri Sarweshwar T. Khairnar, Authorised Representative for the Respondent OR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that assessee cannot file refund claim based on decision of legal invalidity in case of some other person. Similarly, if a person had not challenged the validity earlier, he cannot file refund claim based on decision of invalidity in case of other person (7 v 2 decision in Mafatlal case). Minority view was that if a levy is declared as unconstitutional, other persons, who had not filed any writ or suit earlier, can also file refund claim/writ/suit. I have observed that in case of Mafatlal, it has been held by majority decision that if the levy has been declared as unconstitutional, refund claim can be made by way of suit or a writ petition. In present case the appellant has not filed any petition/ writ for refund claim on the behalf of unconstitutional levy of the tax in any court. Therefore, in view of the landmark decision in the case of Mafatlal Industries vs. Union of India and above clarification, I am of the firm view that the refund claim of the appellant is not admissible. Accordingly Commissioner (Appeal) has rejected the appeal filed by the appellant and has upheld the rejection of refund claim filed by the appellant. 2. I have perused the records, appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax for the month of Sept, 2012 on 03.10.2012, Oct, 2012 on 03.11.2012 Nov, 2012 dated 28.11.2012, Dec, 2012 on 28.12.2012 and Jan, 2013 on 01.02.2013. You have filed the claim on 01/02/2014 and thus, counting one year from the date of payment, these payments are barred by time and liable to be rejected. (2) The Supreme Court judgement is of the date 07/01/2014 and thus the effect of this judgment appears to be prospective i.e. w.e.f. 07/01/2014. All your deposits are from the period 03.10.2012 to 30.04.2013 i.e. before 07/01/2014. (3) The judgement passed is in favour of M/s Delhi Chit Fund Association and not you. It is not clear as to whether you have applied for any concession from Court on the basis of said judgement of High Court/Supreme Court or not. (4) You have not enclosed with your refund claim any Notification/Circular which have resulted out of the said High Court/Supreme Court Order and on the basis of which you have filed your refund claim. In view of the above, M/s Ganga Chit Fund (P) Ltd. 111/72, Ashok Nagar, Kanpur (hereinafter referred to as the Party ) are required to Show Cause to the Assistant Commissioner, Central Excise Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the proviso, the amount of refund determined has to be credited to the fund. 5. On the issue of unjust enrichment, I find that no ground has been taken by the Revenue in the show cause notice. Even during the course of hearing Authorised Representative appearing for the Revenue was unable to point out any such ground taken in the show cause notice and for production and giving opportunity to the appellant for production of the document to substantiate his claim on not passing the burden to the ultimate service recipient. The Chartered Accountant certificate has been rejected stating that it is only a secondary evidence. In the absence of any such ground in the show cause notice and opportunity to the appellant to substantiate his claim on the ground of unjust enrichment this portion of order cannot survive. However, I also find that no proper examination of any of the document by which appellant would have substantiate his claim for not having passed the burden on the tax paid to the service recipient has been undertaken by either of the authorities. To give fair opportunities to both the sides this matter on this ground needs to be remanded back to the Original Authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all jurisdictions. Further in Para 99 of the judgement at point No. (ii), Hon ble Supreme Court have held that Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person s case; this is the ratio of the opinion of Hidayatullah, CJ. in Tilokchand Motichand and we respectfully agree with it. It has also been laid at Point No. (iv) of said para that It is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Chapter V of The Finance Act, 1994 read with Section 11B of the Central Excise Act, 1944. As per these statues the refund claim was to be made by the appellant within one year from the relevant date, which in the present case as per the Authorized Representative, representing the revenue is date of payment of duty . Even if, I go by the date of payment at least the refund claim filed from February, 2013 on 04.03.2013, Mar, 2013 on 30.03.2013 and Apr, 2013 on 30.04.2013 could not be time barred. The proper examination needs to be made by the Original Authority on this aspect also. However before I close the discussion on this aspect of this case I would also refer to the decision of the Hon'ble Apex Court in case ITC [2018 () ELT (SC)], wherein the Hon'ble Apex Court has categorically laid down that the proceedings under Section 11 B of the Central Excise Act, 1944 are executionary in nature. Since this issue has not been considered in light of this decision of the Hon'ble Apex Court, in the remand proceedings adjudicating authority should consider and record findings on this aspect also. 7. In view of the above, I also find that the matter needs to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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