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2015 (11) TMI 220 - CESTAT MUMBAI

2015 (11) TMI 220 - CESTAT MUMBAI - TMI - Rejection of Refund - Export of Bauxite ore - Goods Transport Agency - Revenue contends that there are no rules or notification objecting payment of service tax by a proprietorship concern on behalf of transport agency to whom they pay freight charges and assessee has correctly paid the tax on their behalf while assessee states that being sole proprietorship concern they are not liable to pay service tax for Goods Transport Agency Service either as consi .....

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ods transported falls in one of category mentioned therein - Assessee does not fall in any such category - Impugned order of first appellate authority is correct - Decided in favour of assessee. - Appeal No. ST/655, 656/10 - Dated:- 20-7-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Raju, Member (Technical) For the Petitioner : Shri A.B. Kulgod, Asst. (AR) For the Respondent : Shri Dushyant Purekar, Advocate ORDER Per: M.V. Ravindran These two appeals are directed against Orders-in-Appeal .....

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attention to the impugned order and submit that the respondentassessee has represented himself as a person paying the service tax liability on behalf of the Goods Transport Agency and that the goods i.e. Bauxite Ore are exported to an entity in Japan who is a Company incorporated under law. It is also his submission that there are no rules or notification objecting the payment of service tax by a proprietorship concern on behalf of the transport agency to whom they pay freight charges and that t .....

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6. The learned Counsel appearing for respondent ssessee submits that they filed refund claims on the ground that they had by mistake paid the service tax liability under the category of Goods Transport Agency . It was the case of the respondent assessee that they being sole proprietorship concern are not liable to pay service tax for Goods Transport Agency Service either as consignor or consignee. Learned Counsel would draw our attention to the Notification No.35/2004-ST dated 03.12.2004 which .....

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ces rendered by the Goods Transport Agency. To support his claim he produces sample copies of delivery challan. Referring to the same, he would submit that respondent assessee has procured Bauxite Ore from the mines and delivered it to the respondent assessee office at port of export which would mean that the transportation is from Udgir port to the Jaigad Port and being proprietorship concern is not like to discharge the service tax liability and mistake has done hence the amounts are claimed a .....

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ority while holding in favour of respondent-assessee has held as under:- I have examined the impugned order and contentions. The lower authority has conclusively held that In this case the goods transport agent was supposed to pay service tax .. Once the tax payer is clearly identified, it is the bounden duty of the department to recover the tax from that entity only. There is no indication in the impugned order as to why no investigation/show cause notice was issued to the goods transport agent .....

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as paid the correct service tax. It is only when the refund claim is filed that the department is trying to ascertain the basic data. It is futile to reason the There are no rules or notifications objecting from payment of service tax by the individual directly on behalf of transporting agencies for transporting agencies for whom they are rendering the freight charges. The Hon ble Supreme Court has amplified as to what is the basis for any tax in Pratibha Processors vs. UOI reported in 1996 (88) .....

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in Kuil Fire Works Industries v. CCE reported in 1997 (95) ELT 3 S.C. held Exemption (or for that matter any tax benefit) Assessee cannot be made to suffer on account of illegal act of department authorities This principle pleaded for by assessee before Supreme Court and conceded to by Addl. Solicitor General representing the Department 1991 (51) ELT 185 (S.C.) relied on Since the amount retained by the department is an unauthorized deposit, the question of unjust enrichment also does not arise .....

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entially it is compensatory and different from penalty, which is penal in character Further, in Sandvik Asia Ltd. v. Commissioner of Income Tax I, Pune reported in 2006 (196) ELT 257 (S.C.) it has been held that : Interest Delay in payment of interest on refund Tax can only be in accordance with law, hence in case of collection of excess tax or withholding of any amounts from an assessee without authority of law, revenue must compensate assessee - This compensation includes interest on interest .....

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