9911796707
TMI Blog2011 (3) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... tween ONGC as the first party and M/s. CGG Marine, a company incorporated in France under the relevant French law, as the second party, referred to as the "contractor". Under these contracts, the contractor was required to undertake seismic survey in specific areas earmarked in the Continental Shelf and Exclusive Economic Zone of India, beyond Indian territorial waters, off the Western and Eastern Coasts. The purpose of such survey was to locate mineral oil/natural gas beneath the seabed. The contractor was required to acquire the necessary seismic data, process the same on board the vessel and store the same in tapes and supply these tapes containing the necessary data to ONGC ashore. For such service, ONGC was liable to pay a specific sum to the contractor. Accordingly, the contractor discharged their obligation and ONGC paid for it. This happened during July, 2005 to April, 2006. Each of the contracts contained a condition pertaining to payment of tax, as per which the service tax was to be paid by the contractor and ONGC was liable to reimburse the same. Accordingly, the contractor paid service tax on the taxable value of the service provided to ONGC. The amount of service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted area in Continental Shelf and Exclusive Economic Zone of India as declared by Central Government by Notification No. 1/02-ST, dated 1-3-2002 and, therefore, the contention of ONGC that the service was received outside the territory of India was untenable; (b) A claim for refund of the same amount of service tax, filed by M/s. CGG Marine, Mumbai on the basis of the same TR-6 challans is also pending and no documentary evidence of reimbursement of the amount by ONGC to the other company has been furnished; (c) No details of any utilization of CENVAT credit of the service tax in question have been furnished in support of the claim for refund of the tax; (d) M/s. CGG Marine, Mumbai neither challenged the service tax assessment nor requested for provisional assessment. The assessment attained finality and the same could not be challenged by way of filing refund claim; (e) No documentary evidence has been furnished to establish that the amount of service tax which is claimed as refund has not been collected from any other person. Hence sanction of the refund claim would result in unjust enrichment. 4. ONGC contested the above show- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has endeavoured to show that the marine areas where the contractor conduced seismic survey did not fall within the areas designated by the Central Government under the Territorial Waters, Continental Shelf and Exclusive Economic Zone and other Maritime Zones Act, 1996 (hereinafter referred to as "Maritime Zones Act") for the purpose of levy of service tax. As part of this endeavour, the ld. counsel has moved a Misc. application, which is also before us today. This application, purportedly filed under Rule 23 of the CESTAT (Procedure) Rules, seeks leave for bringing on record what appear to be xerox copies of a few maps. It is submitted that the limited purpose of producing these documents is to enlarge and clarify certain small maps appended to the contracts. Some of these maps are said to be maps of areas of seismic survey beyond the territorial waters of the western coast. One of these documents is said to be a similar map showing seismic survey area beyond the territorial waters of the eastern coast. Each map shows a set of longitudes and latitudes. The ld. counsel submits that these maps will show that the survey sites were not within the designated areas and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. counsel submits that such levy could only be prospective. In other words, the Revenue cannot claim support from Notification No. 14/10-ST ibid, which did not have retrospective operation. 10. Though, in this appeal, there is an alternative plea based on the Export of Services Rules, 2005, the ld. counsel has not pressed it. 11. However, the ld. counsel has contended that the refund claim in question cannot be rejected on the ground of unjust enrichment. The bar of unjust enrichment is not applicable to PSUs like ONGC. In this connection, the ld. counsel relied on CCE v. Karnataka State Agro Corn Products Ltd. 2006 (202) ELT 47 (Kar.) and also on Commissioner of Customs v. Power Grid Corpn. of India Ltd. 2008 (223) ELT 661 (Trib. - Bang). It is also submitted that the service tax paid by M/s. CGG Marine was reimbursed to them by ONGC, whereby the latter acquired the right to plain refund under section 11B of the Central Excise Act. It is further submitted that ONGC, being the service recipient, did not have any other person for passing the burden of tax too. Yet another argument is that, as the tax was paid under protest, the claim for its refund cannot be barred by unju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent in India and, therefore, the payment of service tax by M/s. CGG Marine is a levy of service tax falling within the ambit of section 66 of the Finance Act, 1994. The Jt. CDR clarifies that this levy has nothing to do with the Notifications issued by the Central Government under the Maritime Zones Act. 14. The ld. JCDR also contends that the refund claim without any challenge to the relevant assessments is not maintainable. He relies on Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (SC) and Commissioner of Customs v. Hotelline CPT Ltd. 2005 (179) ELT 313 (Trib. - Delhi). In an apparent bid to preempt his learned opponent, the JCDR also refers to the High Court's decision in Maharashtra Cylinders (P.) Ltd. v. CESTAT 2010 (259) ELT 369 (Bom.) wherein it was held that self-assessment also could be challenged by the assessee by filing appeal. 15. As counter to Karnataka State Agro Corn Products (supra) cited by the ld. counsel, the ld. JCDR refers to Cement Corpn. of India Ltd. v. CCE 2007 (219) ELT 329 (Trib. - Delhi). Wherein it was held that section 11B of the Central Excise Act did not make any distinction between a private enterpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. In his rejoinder, the ld. counsel points out that many of the above arguments of the ld. JCDR are beyond the scope of the show-cause notice and not liable to be entertained. He further Points out that M/s. CGG Marine have withdrawn their refund claim, implying that they received reimbursement of the service tax amount from ONGC. In support of this submission, the ld. counsel has brought on record a copy of Order-in-Original No. 83/2008, dated 10-4-2008 passed by the Asstt. Commissioner of Service Tax, Division I, Mumbai. This order indicates that M/s. CGG Marine had filed two applications for refund, one for Rs. 7,44,40,257 and the other for Rs. 32,64,75,333 and that the Asstt. Commissioner rejected the first of these claims, after noting that "the assessee is seeking refund of first refund claim of Rs. 7,44,40,257 only". According to the ld. counsel, it is evident from this order that the other refund claim of M/s. CGG Marine for Rs. 32,64,75,333 was not pressed before the adjudicating authority. In answer to a query from the Bench, the ld. counsel submits that, if necessary, documentary evidence of reimbursement of the tax amount by ONGC to M/s. CGG Marine can be produced. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party contended, inter alia, that the seismic survey was conducted outside the territory of India and hence no service tax was leviable in relation thereto. The adjudicating authority ought to have taken the cue from this case of the party and to have made an endeavour to make out a case for the Revenue based on the basic statutory provisions. Unfortunately, in this case, this did not happen. The original authority's attempt was to show that the seismic survey was conducted by M/s. CGG Marine within areas specifically designated by the Central Government under the Notifications issued under the Maritime Zones Act. The adjudicating authority was, apparently, completely oblivious of the basic facts of the case and the fundamental provisions of law. A crucial fact before the authority was that the survey was conducted by a French company which had its office in Mumbai and that the said company paid service tax through the Mumbai office on the amounts collected by them from ONGC. The fact that the company, through the Mumbai office, was registered with the Central Excise authorities was also not unknown to the Asstt. Commissioner. That the service recipient (ONGC) was resident/situate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at ONGC did not furnish any documents to show that the burden of service tax had not been passed on to any other person. Therefore, justifiably, the Asstt. Commissioner held the refund claim to be barred by unjust enrichment. Yet another ground raised in the show-cause notice was that any particulars of utilization of CENVAT credit had not been furnished by the claimant. Any utilization of CENVAT credit of the service tax in question by ONGC for payment of duty of excise on their excisable products or for payment of service tax on any output service would also be relevant to the question whether the service tax burden was passed on to any other person. Apparently, the Asstt. Commissioner did not attempt any study on this aspect. The Commissioner (Appeals) chose to affirm the views of the Asstt. Commissioner without independent application of mind. 23. We have already referred to Order-in-Original No. 83/2008, dated 8-4-2008 passed by the Asstt. Commissioner of Service Tax, Division I, Mumbai in relation to certain refund applications filed by M/s. CGG Veritas/M/s. CGG Marine/CGG Services. We are told by the ld. counsel that Order-in-Original No. 83/2008 ibid pertains to refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
