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2022 (11) TMI 149 - AT - Service TaxCash Refund of CENVAT Credit - Ocean Freight - duty paying documents - denial of refund on the ground of suppression of facts in terms of Rule 9(1)(bb) of Cenvat Credit Rules - HELD THAT:- Though the appellant have paid the Service Tax on Ocean freight on the instruction of audit, but no Show Cause Notice was issued for demand of such Service Tax. In absence of any proceedings with respect to the demand of Service Tax, the charge of suppression of fact does not exist, for holding that there is a suppression of facts on the part of the appellant. It is necessary that the said charge is adjudicated by issuing a Show Cause Notice and adjudication process, which is absent in the present case. Therefore, the contention of the Lower Authorities that there is a suppression of fact is only based on assumption and presumption, hence, the same is not sustainable. Since, there is no suppression of fact, Rule 9(1)(bb) is not applicable - the cash refund of the said amount, even though there is no provision under Section 11B but as per special provision under Section 142(3) of CGST Act, the appellant are prima facie entitled for cash refund. The issue of taxability on Ocean freight has now been decided in the case of MESSRS SAL STEEL LTD. & 1 OTHER (S) VERSUS UNION OF INDIA [2019 (9) TMI 1315 - GUJARAT HIGH COURT] where it was held that The Notification Nos.15/2017- ST and 16/2017-ST making Rule 2(1)(d)(EEC) and Rule 6(7CA) of the Service Tax Rules and inserting Explanation-V to reverse charge Notification No.30/2012-ST is struck down as ultra vires Sections 64, 66B, 67 and 94 of the Finance Act, 1994; and consequently the proceedings initiated against the writ applicants by way of show cause notice and enquiries for collecting service tax from them as importers on sea transportation service in CIF contracts are hereby quashed - Since this judgment was not available before the Lower Authority as this judgment was passed after the orders in this case passed by the Lower Authorities, the issue of taxability is also kept open and the appellant has liberty to raise this issue also before the Adjudicating Authority. The appeals are allowed by way of remand to the Adjudicating Authority.
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