2022 (7) TMI 567 - AT - Central Excise

Seeking refund of service tax paid on ocean freight - case of appellant is that the appellant is entitled for Cenvat credit of service tax paid on ocean freight and accordingly they are entitled cash refund under Section 142(3) read with Section 11B - HELD THAT - Both the lower authorities passed the order on the ground that the refund which were claimed than cash refund of Cenvat credit of service tax paid on ocean freight in terms of Section 142(3) read with Section 11B is not admissible. As regard the said issue this Tribunal s Division Bench has referred the matter to the Larger Bench in the case of M/S. BOSCH ELECTRICAL DRIVE INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF G.S.T. AND CENTRAL EXCISE CHENNAI 2021 (10) TMI 1345 - CESTAT CHENNAI - No order is passed on cash refund of Cenvat credit governed under Section 142 (3) of CGST Act 2017. Since the appellant have made claim on the basis of Hon ble Gujarat High Court judgment in the case of SAL Steels Limited 2019 (9) TMI 1315 - GUJARAT HIGH COURT that levy of service tax itself is illegal. Their refund claim of service tax paid by them is not on this ground. Since now appellant argued that they are entitled to refund of service tax paid on ocean freight there will not have any effect on reference made by the Division Bench. Further this issue was not examined by the lower authorities about the levy of service tax on ocean freight and also the judgment of Hon ble Gujarat High Court was not available before the lower authorities. Matter remanded to the Adjudicating Authority to decide the case afresh under Section 11B that whether the service tax paid by the appellant on ocean freight is legal and correct or otherwise - appeal allowed by way of remand.

Issues involved:
1. Entitlement for refund of service tax paid on ocean freight based on Cenvat credit eligibility.
2. Jurisdiction of the Tribunal to decide refund under Section 142(3).
3. Admissibility of cash refund of Cenvat credit under Section 11B.
4. Effect of the judgment of Hon'ble Gujarat High Court on the refund claim.

Analysis:
1. The primary issue in this case is whether the appellant is entitled to a refund of service tax paid on ocean freight by claiming Cenvat credit eligibility. The appellant argued that a recent judgment of the Hon'ble Gujarat High Court supports their claim for service tax refund. The Tribunal noted that the lower authorities had previously denied the refund claim based on the inadmissibility of cash refund of Cenvat credit under Section 142(3) read with Section 11B. However, the Tribunal refrained from deciding on the cash refund of Cenvat credit due to a pending reference to the Larger Bench regarding jurisdiction. The Tribunal emphasized that the appellant's claim was not solely based on the illegality of the service tax levy but on the entitlement to a refund of service tax paid on ocean freight.

2. The issue of jurisdiction regarding the refund of Cenvat credit under Section 142(3) was highlighted by the Revenue, stating that the matter had been referred to the Larger Bench for clarification. As a result, the Tribunal did not make a definitive decision on the cash refund of Cenvat credit. The Tribunal acknowledged the pending reference to the Larger Bench in a related case and refrained from passing an order on the cash refund of Cenvat credit under Section 142(3) of the CGST Act, 2017.

3. The Tribunal remanded the case to the Adjudicating Authority to reevaluate whether the service tax paid by the appellant on ocean freight was lawful and correct. The Tribunal directed the Adjudicating Authority to examine the legality of the service tax levy on ocean freight and to keep the issue of refund of Cenvat credit open for further consideration. The appeal was allowed by remanding the case to the Adjudicating Authority for a fresh decision under Section 11B to determine the legality of the service tax paid on ocean freight and the admissibility of the Cenvat credit refund.

4. The Tribunal considered the impact of the judgment of the Hon'ble Gujarat High Court on the refund claim. It noted that the lower authorities had not examined the levy of service tax on ocean freight or the judgment of the Hon'ble Gujarat High Court due to the timing of the judgment. The Tribunal concluded that the appellant's argument for a refund of service tax paid on ocean freight, based on the recent judgment, warranted further examination by the Adjudicating Authority to determine the legality of the service tax payment and the entitlement to a refund.

In conclusion, the Tribunal remanded the case for a fresh decision on the legality of the service tax paid on ocean freight and the admissibility of the Cenvat credit refund, considering the recent judgment and the pending jurisdictional issue referred to the Larger Bench.

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