9911796707
TMI Blog2012 (12) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... Services and collected from M/s.Shri Sai Marketing and Trading Company, Jalgaon. The activity provided by the Respondent was giving space in their busses during the period from September, 2007 to May, 2008. The Respondent had relied upon the clarification issued by the Board vide letter F.No.137/123/2010-CX-4 dated 09/05/2011, wherein it was clarified that the activity undertaken by M/s.Gujarat State Road Transport Corporation (GSRTC) for providing space in their buses to Sai Marketing and Trading Company, is a mere transportation but cannot be covered under Goods Transport Agency Service as no consignment note was being issued and the activity is not covered under Business Auxiliary Service during the relevant period. The said claim was rejected by the Adjudicating Authority on the ground that the refund is filed beyond the period of limitation as provided under Section-12 of the Central Excise Act, 1994 and also on the ground that the clarification given by the Board will not cover the provision of Sec.11-B. On such order of the Adjudicating Authority in rejecting the refund claim the Respondent herein preferred an appeal before the First Appellate Authority and the First Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the Section 83 of the Finance Act, 1994. As the refund claim was rightly rejected under the purview of the relevant Rules & Regulations, the same requires to be maintained as per the order of the adjudicating authority. Therefore, observation of the Commissioner (Appeals) in this regard is not tenable and requires to be set aside. 5. The Led. Counsel appearing on behalf of the Respondent would submit as under : 5.1. The applicant is a passenger transport organization providing bus services both within Gujarat and neighbouring states. The applicant provides various services inter-alia, city services, intercity services interstate services. The applicant also providing parcel services for transporting goods. The applicant is registered with service tax department having Service Tax registration No.AAACG5587HST001. 5.2. The applicant is providing among other services, the parcel service. In one such case, tenders were called as a result of privatization of for transportation of parcels, Allied services and courier documents through the buses of the corporation. In response to the tenders so invited, the bid of Shri Sai Marketing & Trading company, Jalgaon, Maharashtra was acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of entering into contract i.e. 01/09/2007 till the clarification received from jurisdictional Assistant Commissioner, Jalgaon vide his letter F.No.DD/ST/Misc/08 dated 09/07/2008 confirmed that GSRTC has no ground for collecting service tax in the category of Courier Service . 5.8. From October, 2008, service tax was not paid by the Applicant subsequent to the clarification as stated supra. Hence, a show-cause notice vide letter F.No.01/04/75/GSRTC/2008-2009 dated 13/05/2009 was served to the Applicant and demand was raised for period of October 2008 to March, 2009. However, during adjudication of the Show-cause notice, the Assistant Commissioner drop the proceedings considering the facts of the case as stated in Para-4 and 5 supra vide OIO No.STC/4-22/O&A/2009 dated 04/03/2010. 5.9. In 2011, subsequent to filing of refund on clarification received from CBEC, proceedings initiated vide SCN issued vide F.No.STC/04-76/O&A/2008 dated 29/02/2009 has been dropped vide OIO dated 15/12/2011. 5.10. Further, the Director (Service Tax) CBEC has issued a clarification with reference to representation made by M/s. Shri Sai Marketing & Trading company, Jalgaon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter receiving a clarification dated 09/05/2011 from the Central Board of Excise & Customs. It is also undisputed that the amount paid by the appellant during the period from September, 2007 to May, 2008 and the said amount is indisputably paid as Service Tax under Courier Service Agencies. The refund claim is filed by the appellant on 1/07/21.01 7. There being an undisputed fact that the appellant has discharged service tax liability during the material period under the category of Courier Services, the refund claim if any, would be covered under the provision of Sec.11B of the Central Excise Act, 1944. In order to appreciate the correct provision, we reproduce Section 11B of the Central Excise Act, 1944. SECTION-11B (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty [OLD- duty of excise ] may make an application for refund of such duty and interest, if any, paid on such duty [OLD- duty ] to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest, if any, paid on such duty [OLD- duty of excise ] paid by the manufacturer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty [OLD- duty ] to any other person; (e) the duty of excise and interest, if any, paid on such duty [OLD- duty of excise ] borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty [OLD- duty ] to any other person; (f) the duty of excise and interest, if any, paid on such duty [OLD- duty of excise ] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person. (In sub-Section (2), the words "duty of excise and interest, if any, paid on such duty" & "duty and interest, if any, paid on such duty" has been substituted vide Finance Bill 2008) (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any cour ..... 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