TMI Blog2017 (8) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... -8-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri Raghavan Ramabhadran, Advocate for the Appellant Shri K.P. Muralidharan, AC (AR) for the Respondent ORDER Per: Bench The appellants are aggrieved by the rejection of refund claim of the service tax paid erroneously under GTA services. 1.1 The appellants are engaged in the manufacture, inter alia, of spiral welded MS pipes falling under sub-heading 7304 and 7305 of CETA, 1985 and are registered with the Central Excise Department. They are also registered under Business Auxiliary Service with effect from 30.11.2004 for payment of service tax in respect of job work done for coal tar coating on pipes supplied to M/s. IOCL. They were discharging central excise duty on finished products manufactured by them and were also paying service tax in respect of coal tar coating on the pipes received from IOCL. The bid submitted by the appellants on an offer for coal tar coating and polythelene coating of bare pipes was accepted by IOCL on 28.6.2004. On such day of the contract, there was no service tax liability on the activity either under goods transport a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiterated the grounds of appeal and made the following main submissions:- i) The appellants provides two services to their clients namely IOC. (a) Business Auxiliary services of coal tar coating on pipes (b) goods transport agency services. They had paid ₹ 69,17,500/- as service tax for the period 10.09.2004 to 30.11.2004. During this period only Business Auxiliary Services wax taxable service whereas Goods Transportation Agency services was not taxable. Appellant mistakenly paid service tax on the transportation charges also. Thus they are eligible for refund of service tax paid on transportation charges. In order to avoid the dispute with regard to unjust enrichment, the appellant has limited the claim of refund on the service tax applicable to inward transport only. That they did not claim refund of service tax on the outward transportation charges. That these facts are undisputed. ii) Since the documents did not show the transportation charges separately, the appellant had arrived at the quantum of service tax applicable to inward transportation by applying a formula. The documents were furnished before the Range officer and the worksheet of arriving the quantum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challan. In this case also consignment note refers to the actual weight and length of the bare pipes being transported by Supreme Road Carriers from Nagathone to the Vaiyavoor Factory premises of PSL Limited. The bills are raised periodically by Supreme Road Carriers with reference to the number of trailors transported during the month. The bills obviously were raised based on the rate per trailor or pipe indicated in the contract of transportation awarded to Supreme Road Carriers. Hence the entire cost of transportation of bare pipes from Nagathone/Bahadurgarh to the Vaiyavoor Factory premises of PSL Limited is fully supported by consignment notes and the bills raised by Supreme Road Carriers. Thus the cost of transportation is fully supported by documentary evidence. (v) That it is seen from the contract that the amount paid is inclusive of works contract tax and outward freight. This has to be excluded to arrive at the basic rate and accordingly the basic rate has been indicated. For each of the invoice copies placed on file if these two elements are removed from the contract price it would clearly tally with the basic rate shown in the worksheet. This is explained as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 826 dated 4-11-2004 Quantity 254.840 mts. Invoice value Rs.115351.00 Contract price per metre ₹ 453 Less Works contract tax at 4.2% (426/104.2x 4.2) ₹ 18 Invoice rate (basic) ₹ 435 Less Outward freight charges ₹ 32 Balance = Basic price ₹ 403 Basic amount in the worksheet (254.840 mtr x ₹ 403) ₹ 102620 5 Invoice No.1501 dated 23-09-2004 Quantity 218.370 mts. Invoice value Rs.112023.00 Contract price per metre ₹ 513 Less Works contract tax at 4.2% (426/104.2x 4.2) ₹ 21 Invoice rate (basic) ₹ 492 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipeline laying contractor. This had resulted in improper representation of facts at the time of personal hearing. In order to ascertain the freight element to entertain the claim, the assesse was given several opportunities to identify the cost of transportation paid consignment-wise, as it was not feasible to apportion any part of the agreed upon contract price towards transportation. 6. The appellant then had filed written submissions explaining the differences. However though some of the consignment notes tallied, there was non-tally of some other; for example; transport bill No.15 dated 01.11.2004. The relevant invoices of bare pipes were not furnished to correlate with all annexures. Thus on the basis of different discrepancies as pointed out in the order-in-original, the refund claim was rejected. The appellants have not shown the freight charges separately and the refund claim has been arrived by applying a method/formula to arrive at the transportation cost of bare pipes from the total value of the contract. In such situation as the appellants have not been able to properly point out and quantify. The excess tax paid, the refund claim has been rightly rejected. 7. Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove. We have to say that the adjudicating authority has given much effort to correlate and tally the worksheet/calculations given by appellant with the documents. The report of the Range officer was called for several times. There are series of letters issued to the appellant requesting for clarifications. The appellant has given reply to such queries. The Range officer reported that appellant had paid sum of ₹ 69,17,500/- on 30.11.2004 as service tax and that this was paid on total value of services, and the same was paid from their Cenvat account under protest. Since the Range officers verification report was not specific as to how the appellant had worked out the transportation charges when the same was not separately shown in the invoices, a detailed report was again called for from Range officer who submitted his report as follows: i) Transportation charges could be obtained from the Transporter's Bill of M/s. Supreme Road Carriers, New Delhi and that the rate could be worked out on the basis of a formula Rate per load of pipes/No. of pipes would give freight per pipe and when divided by average length of the pipe it would give freight per metre of pipe. ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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