TMI Blog2022 (11) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicated by issuing a Show Cause Notice and adjudication process, which is absent in the present case. Therefore, the contention of the Lower Authorities that there is a suppression of fact is only based on assumption and presumption, hence, the same is not sustainable. Since, there is no suppression of fact, Rule 9(1)(bb) is not applicable - the cash refund of the said amount, even though there is no provision under Section 11B but as per special provision under Section 142(3) of CGST Act, the appellant are prima facie entitled for cash refund. The issue of taxability on Ocean freight has now been decided in the case of MESSRS SAL STEEL LTD. 1 OTHER (S) VERSUS UNION OF INDIA [ 2019 (9) TMI 1315 - GUJARAT HIGH COURT] where it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention such Ocean freight is liable to service tax, accordingly, the appellant have paid the service tax on the Ocean freight and subsequently, they filed a refund claim for the reason that though they were entitled for the Cenvat Credit but due to GST regime they were not in-position to avail the Cenvat Credit, hence, they filed a refund claim. The refund claim was rejected by the Adjudicating Authority on the ground that since the Service Tax on Ocean freight was paid on insistence of audit, therefore, there is a suppression of fact. In terms of Rule 9(1)(bb) of Cenvat Credit Rules, the appellants are not entitled for the Cenvat credit, consequently they are also not entitled for refund. The appellant being aggrieved by the Orders-In-Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have carefully considered the submission made by both the sides and perused the records. The Cenvat credit was denied by the Lower Authorities on the ground that since there is a suppression of fact in terms of Rule 9(1)(bb), the appellant are not entitled for Cenvat credit and consequential the refund. In this regard, I find that though the appellant have paid the Service Tax on Ocean freight on the instruction of audit, but no Show Cause Notice was issued for demand of such Service Tax. In absence of any proceedings with respect to the demand of Service Tax, the charge of suppression of fact does not exist, for holding that there is a suppression of facts on the part of the appellant. It is necessary that the said charge is adjudicated by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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