TMI Blog2011 (3) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid amount was, in fact, reimbursed by them to M/s. CGG Marine, which is a pre-requisite for the Asstt. Commissioner to take up ONGC’s refund claim for consideration - Decided in the favour of the assessee by way of remand - ST/140/2009-MUM. - M/138/11/CSTB/C-I & A/161/11/CSTB/C-I - Dated:- 31-3-2011 - P.G. CHACKO, SAHAB SINGH, JJ. D.B. Shroff and Manoj Sanklecha for the Appellant. A.K. Prasad for the Respondent. ORDER P.G. Chacko, Judicial Member. The appeal is against rejection of a refund claim filed by M/s. Oil Natural Gas Corporation Ltd. ( ONGC for short), whose claim for refund of service tax of Rs. 32,64,75,333.96 was rejected on numerous grounds by the Asstt. Commissioner of Service Tax, whose decision was sustained by the Commissioner (Appeals). The claim of ONGC, which was filed on 6-8-2007, was for refund of the aforesaid amount of service tax paid by M/s. CGG Marine on 31-3-2006 and 16-5-2006 on the taxable value of survey and exploration of mineral service rendered to ONGC under three contracts between the companies, the first dated 22-9-2004, the second dated 23-11-2005 and the third dated 21-2-2006. Each contract was conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (105)(zzv) of the Finance Act, 1994. After referring to Circular No. 36/4/2001-CX, dated 8-10-2001 issued by the CBEC, ONGC, in their refund application, contended that the service provided to them by the contractor was not subject to levy of service tax under the Finance Act, 1994 as the service was rendered beyond the territorial waters of India. They also relied on the Taxation of Services (Provided from outside India and Received in India) Rules, 2006. They further contended that, in any case, the service was not liable to be taxed in India by virtue of the exemption from payment of service tax on export of services under the Export of Services Rules, 2005. 3. Upon receipt of the refund claim, the Asstt. Commissioner issued show-cause notice dated 22-8-2007 to ONGC calling upon them to show cause why the claim should not be rejected as inadmissible under sub-section (2) of section 11B of the Central Excise Act as made applicable to service tax under section 83 of the Finance Act, 1994. The grounds raised in the show-cause notice for rejecting the refund claim were, to state briefly, as follows:- (a) The taxable service was provided by the contractor to ONGC within the des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of M/s. CGG Marine (France) and was not refundable. Aggrieved, ONGC preferred an appeal to the Commissioner (Appeals) but without any success. The present appeal is directed against the appellate Commissioner s order. 6. Like the original authority, the appellate authority also held that ONGC had not been able to prove satisfactorily that the service in question was received in non-designated areas of Continental Shelf and Exclusive Economic Zone and beyond the territorial waters of India. The appellate authority further observed that the whole of the service provided by M/s. CGG Marine to ONGC should be treated as provided in India in terms of Rule 3(ii) of the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006. The appellate authority did not accept the plea that the service tax had been paid under protest. It also noted that no documents had been produced by ONGC to show that the incidence of tax had not been passed on to any other person. 7. The grounds of this appeal are a replica of the contentions raised by ONGC in their refund claim and reply to show-cause notice. 8. Heard both sides. The ld. counsel for the appellant has endeavou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter V of the Finance Act, 1994 to certain designated areas in the Continental Shelf and Exclusive Economic Zone of India as declared by Notification Nos. 429(E), dated 18-7-1986 and 643(E), dated 19-9-1996. The ld. counsel has invited our attention to the designated areas declared by the Central Government under Notification Nos. 429(E) and 643(E) ibid. He submits that the seismic survey was not performed within the limits of the latitudes and longitudes specified in any of these notifications, it is, therefore, contended that the service in question was provided by M/s.CGG Marine to ONGC not only beyond the territory of India but also outside the areas designated by the Central Government under the Maritime Zones Act. Notification No. 14/2010-ST dated 27-2-2010 referred to by the ld. counsel was also issued by the Central Government under the above Act and the same extended the provisions of Chapter V of the Finance Act, 1994 to the whole of the Continental Shelf and Exclusive Economic Zone. While conceding that services of the kind provided by CGG Marine could be subject to levy of service tax by virtue of the notification dated 27-2-2010, the ld. counsel submits that such l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 3D tape, are delivered to ONGC (service recipient). The tape was delivered to ONGC in India, a fact not in dispute. Therefore, according to Jt. CDR, M/s. CGG Marine should be held to have provided the above service to ONGC in India. Therefore, the service is taxable under section 65(105)(zzv) of the Finance Act, 1994 read with section 65(104a) of the Act. The service tax was actually paid by the service provider as evidenced by the TR-6 challans. The ld. Jt. CDR points out that even the challans prepared by the service provider indicate the assessee to be located in Mumbai and not in France. Further, M/s. CGG Marine, Mumbai are registered with the department as a provider of taxable services in relation to "survey and exploration of mineral" as evidenced by the relevant registration certificate dated 10-8-2005 (copy produced by Jt. CDR). Even otherwise, according to Jt. CDR, the foreign company providing a taxable service in India through its branch located in India should be held to be a service provider in India. Thus it is argued, that, in this case, the taxable service was provided in India by a person resident in India to another person resident in India and, therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of National Winder was that, if a manufacturer paid duty under protest, then the limitation of six months provided under section 11B of the Central Excise Act would not apply even to a claim for refund of such duty by the purchaser of the goods. It was this view which was held to be per incuriam in the case of Allied Photographies India Ltd. Therefore, according to Jt. CDR, the refund claim is liable to be rejected as time-barred. In this connection, it has also been argued that the absence of specific mention of time-bar/limitation in the show-cause notice cannot be fatal to the Revenue inasmuch as the notice clearly invoked section 11B of the Central Excise Act and also contained specific mention of the dates of payment of service tax as well as the date of the refund claim. 17. In the absence of evidence of reimbursement of the tax amount by ONGC to M/s. CGG Marine, it is submitted that the claim filed by ONGC is liable to be rejected. It is also submitted that the appellant has not adduced any evidence against the bar of unjust enrichment and hence their claim for refund of the service tax is liable to be rejected on this ground as well. 18. In his rejoinder, the ld. cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application filed under the Rule shall be in accordance with section 11B of the Central Excise Act. Therefore, it cannot be gainsaid that the refund application was filed under section 11B of the Central Excise Act. As we have already indicated, the Act nowhere makes it obligatory for the department to issue show-cause notice upon receipt of refund claim filed under section 11B. The show-cause notice, in the present case, is, by and large, in the nature of a counter to the various contentions raised in ONGC s refund claim. Any reference to statutory provisions, Notifications or circulars in the show-cause notice or non-mention of any particular provision of law therein cannot be fatal to the Revenue. 20. What must fall for adjudication by the Asstt. Commissioner is the refund claim rather than the show-cause notice. ONGC raised numerous contentions in their refund application. The show-cause notice issued by the department made an attempt to rebut the contentions raised by the claimant. Of course, it also proposed to reject the refund claim as inadmissible under sub-section (2) of section 11B of the Central Excise Act. In the refund application, the party contended, inter alia, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by unjust enrichment or not. In the instant case, ONGC denied service tax liability in their application for refund, on certain grounds. As we have already indicated, the adjudicating authority just rejected those grounds and held that service tax was leviable and correctly levied on the amount paid by ONGC to M/s. CGG Marine for the service provided by the latter. It was so held on the basis of Notifications issued by the Central Government under the Maritime Zones Act without regard to the charging provisions under the Finance Act, 1994. This is where the original authority fundamentally erred in this case. Further, though the authority was required to ascertain, under section 11B of the Act, whether the refund claim was barred by limitation and unjust enrichment, the Asstt. Commissioner did not even attempt to examine whether the refund claim was time-barred or not. The mere fact that limitation was not expressly mentioned in the show-cause notice did not preclude the authority from examining whether the refund claim was time-barred or not, which was a mandatory requirement under section 11B of the Act. 22. As regards unjust enrichment, we find that ONGC did not furnish any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. That crucial question of fact is whether the service tax amount was, in fact, reimbursed by ONGC to M/s. CGG Marine. Nowhere in the present records is there any mention of the date or other particulars of such reimbursement, apart from a bold averment that the amount was reimbursed. This is not enough. Before proceeding to deal with ONGC s refund claim, the Asstt. Commissioner has to satisfy himself that the service tax amount of Rs. 32,64,75,333 paid by M/s. CGG Marine was, in fact, reimbursed to them by ONGC. If, in fact, there was no such reimbursement of the amount by ONGC, the Corporation cannot claim any refund of the tax under section 11B of the Act. It is for the appellant to establish that the aforesaid amount was, in fact, reimbursed by them to M/s. CGG Marine, which is a pre-requisite for the Asstt. Commissioner to take up ONGC s refund claim for consideration. 24. Those decisions cited before us which are relevant to the issues to be settled by the adjudicating authority will have to be considered by that authority. 25. For all the aforesaid reasons, we have found this case to be fit for remand to the original authority. Accordingly, we set aside the orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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