TMI Blog2019 (8) TMI 1489X X X X Extracts X X X X X X X X Extracts X X X X ..... s an exporter of goods. In the earlier paragraphs of this order it has been held that the adjudicating authority or the appellate authority cannot go beyond the allegations contained in the show cause notice. It would, therefore, not be necessary to consider the submission of the learned Authorized Representative of the Department - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 51447 of 2019-DB - Final Order No.51164/2019 - Dated:- 14-8-2019 - HON BLE MR.JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR. BIJAY KUMAR, MEMBER (TECHNICAL) Sh. Tarun Gulati, Sr.Advocate Sh. Vinayak Mathur, Advocate for the Appellant Sh. Sanjay Jain, Authorized Representative for the Respondent ORDER JUSTICE DILIP GUPTA The order passed by the Commissioner of Central Tax, Appeals II, Delhi, the Commissioner on 02 May, 2019 setting aside the order dated 6 September, 2018 passed by the Assistant Commissioner, Central Excise Division, Vasant Kunj, Delhi, South Commissionerate, the Assistant Commissioner and disposing of the Appeal in terms of the directions contained in the order has been assailed in this Appeal. The Assistant Commissioner by order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the goods are sold only to the international passengers as per Circular No. 32/2016-Customs dated 13.07.2016 section 71 of the Customs Act, 1962. The invoice issued to the passengers contains the name of passenger, passport number, ticket of passenger along with the purchased item and the payment made in convertible foreign currency is mentioned. 7. A sale voucher for every sale by the applicant is prepared which is deemed to be shipping bill or bill of entry u/s 69 or 68 of the Customs Act as the case may be. Thus, the relevant date of export of such goods in the date of invoice. 8. As held by Hon ble Supreme Court in Hotel Ashoka vs ACCT 2012 (276) ELT 433 (SC), sale of goods by a duty free shops to outbound international passenger is export of goods. In the present case, the appellant have sought the refund of service tax paid on input services necessary and inalienable to their core business such as concession fee, marketing fee, airport service charge and utility charges. As per the judgment in Ashok Granites Ltd. vs CCEST 2016 (46) STR 875 (Tri-Chennai), the relevant date in such refund claims will be date of export as per section 11B of Central Excise Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based on a completely erroneous basis which does not arise in the facts of the present case and the present show cause notice ought to be dropped. 6. It is further submitted that the present refund application under section 11B of the Excise Act read with section 83 of the Finance Act have been filed in furtherance of the decision of the Hon ble CESTAT in Commissioner of Service Tax VII, Mumbai vs. Flamingo Duty Free Pvt. Ltd. (Order NO. A/89737-89744/17/STB dated 28.09.2017). In this case, it was held that the duty free area qualifies as a non-taxable territory and services provided in such area were not subject to the levy of service tax since service tax is payable only on services provided in the taxable territory as per section 66B of the Finance Act. Here, it is also submitted that refund was granted on the basis that services were provided outside the taxable territory and not because the assessee was involved in export of goods. Further, the operation of this decision has not yet been stayed by the High Court or the Supreme Court, the ratio laid down by the Hon‟ble CESTAT continues to remain applicable and binding. Reliance in this regard is made to Hindustan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revised total ₹ 40,62,18,793/- In view of the above, it is submitted that the present show cause notice is liable to be dropped and an amount of ₹ 40,62,18,793/- ought to be refunded alongwith interest to the Noticee. (emphasis supplied) 6. The Assistant Commissioner, by order dated 6 September, 2018 sanctioned refund of ₹ 27,84,25,899/- but denied refund of ₹ 12,77,92,894/-. In regard to the eligibility of the refund, the Assistant Commissioner, in view of the judgment of the Tribunal in Flemingo Duty Free Shop Pvt. Ltd., held that the Appellant was eligible for refund of Service Tax incorrectly charged by its vendors and claimed from the Appellant. In regard to the limitation aspect, the Assistant Commissioner found that it was necessary for him to examine the issue of limitation and unjust enrichment under section 11B of the Excise Act. For the purpose of determining the limitation aspect, the Assistant Commissioner observed that the relevant date for determining how much claim was filed within the period of limitation would, as provided for under section 11B (5)(B)(f) of the Excise Act, be the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN ) proposing the denial of partial refund claim. On perusal of the show cause notice, I find that the same has been issued on the basis that the sale at duty free shops by the appellant qualifies as export and accordingly, the period of limitation as exists in respect of export related cases would be applicable. However, this fact has not been examined in the impugned order as to whether or not the sales by the appellant at the duty free shops qualify as export. Thus, the very basis to issue the show cause notice has not been examined in the impugned order. To this extent, the same is a non-speaking order inasmuch as the Adjudicating Authority must have examined the issue on the basis of which the show cause notice has been issued to the appellant . I find that the Chandna Impex vs CCU 2011 (269) ELT 433 (SC), the Hon‟ble Supreme Court has held that Statutory appeal dismissed in limine by non-speaking order by High Court, as submitted-High Court should have examined each question formulated with reference to material considered by Tribunal and given its reasons. Thus, it must have been examined as to whether or not the supply by the appellant qualifies as export of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, the Commissioner (Appeals) not only went beyond the show cause notice but the Appeal itself. The contention, therefore, is that the impugned order has placed the Appellant in a worse position than before the filing of the Appeal. In support of the contentions learned counsel relied upon the following decisions:- (i) J.K. Cotton Spinning Weaving Mills Co. Ltd. v. Sales Tax Officer, Kanpur 1997 (91) ELT 34 (SC); (ii) Vasavi Soft Drinks (P) Ltd. v. Commissioner of Central Excise Bangalore 001 (138) ELT 347 (Tri. Bang.); (iii) Jaswal Neco Ltd. v. Commissioner of Customs, Vishakhapatnam 2015 (32) ELT 561 (SC); (iv) Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd. (2007) 8 (2007) 8 SCC 89; (v) Nestor Pharmaceuticals Ltd. v. Commissioner of Central Excise, Delhi 2000 (116) ELT 477 (Tribunal); (vi) Indpol Links (India) v. Commissioner of Customs, Mumbai 2001 (135) ELT 89 (Tri. Mum.); (vii) Tata Johnson Controls Automotive v. Commissioner of Custom., Mumbai 2004 (167) ELT 93 (Tri. Mum); and (viii) Nilos India Pvt. Ltd. v. Commissioner of Customs, Chennai 2009 (241) ELT 270 (Tri. Chennai). 11. Learned Senior Counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assistant Commissioner relied upon the decision of the Supreme Court in Hotel Ashok v/s Assistant Commissioner of Commercial Taxes 2012 (276) ELT 433 (SC) to conclude that sale of goods by the duty free shop to outbound international passengers is export of goods. This is what was also examined by the Assistant Commissioner in the order dated 6 September, 2018 against which the appeal was filed before the Commissioner. The Appeal was filed before the Commissioner for the reason that part of the refund claim was denied. 15. It was imperative for the Commissioner to have confined himself to the issue raised in the show cause notice but what transpires from the Order passed by the Commissioner is that the Commissioner instead of examining this limited issue relating to limitation went beyond the show cause notice and in fact went to the extent of observing that it was necessary for the adjudicating authority to have examined whether the supply by the Appellant qualifies export of goods . As noticed above, the show cause notice did not call upon the Appellant to submit a reply on this issue and in fact proceeded on the footing that the sale of goods by a duty free shop to outbo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no factual aspect is involved. Learned Senior Counsel submitted that the refund of ₹ 12,77,92,894/- has been denied to the Appellant only for the reason that it was for a period beyond limitation period prescribed in section 11B of the Excise Act and not for the reason that the Appellant was not entitled to claim the refund. 22. It is for this reason that this issue is being examined as no factual aspect is involved. We have, accordingly, heard the learned Senior Counsel for the Appellant and the learned Authorized Representative of the Department on this issue also. 23. The contention of learned Senior Counsel for the Appellant is since Service Tax is not payable in view of the decision of the Tribunal in Flemingo , the amount paid by the Appellant cannot be said to be in the nature of Service Tax and it has been collected without authority of law. 24. This issue was examined by the Delhi High Court in Alar Infrastructure Pvt. Ltd. and the relevant portion of the judgment is reproduced below:- 2. According to the appellant, the services rendered by it, viz., Business Auxiliary Services‟ were provided to recipients outside India and therefore, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of discovery of mistaken payment. 27. The Karnataka High Court in KVR Construction relied upon the decision of the Delhi High Court in Hind Agro Industries and held that section 11B of the Excise Act refers to claim for refund of excise only and does not refer to any other amount collected without authority of law. Relevant portion of the order is reproduced below:- 18. From the reading of the above Section, it refers to claim for refund of duty of excise only, it does not refer to any other amounts collected without authority of law. In the case on hand, admittedly, the amount sought for as refund was the amount paid under mistaken notion which even according to the department was not liable to be paid. 19. According to the appellant, the very fact that said amounts are paid as service tax under Finance Act, 1994 and also filing of an application in Form-R of the Central Excise Act would indicate that the applicant was intending to claim refund of the duty with reference to Section 11B, therefore, now it is not open to him to go back and say that it was not refund of duty. No doubt in the present case, Form-R was used by the applicant to claim refund. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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