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TMI Blog2024 (5) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent is engaged in the manufacture of edible oil and were importing crude oil. A refund claim of Rs.21,20,859/- was filed on 06.09.2021 which was deposited pursuant to an audit for the period April 2017 to June 2017. It was the case of the Department that the respondent was liable for payment of service tax on reverse charge mechanism on the ocean freight. However, the contention of the respondent is that the amount of ocean freight stands included in the assessable value and for the purpose of demand, said amount of ocean freight amounts to double taxation. The Adjudicating Authority vide the Order-In-Original rejected the refund claim holding that the refund claim was filed after a delay of 20 Months from the due date i.e. 30th December, 2019 and accordingly is hit by limitation of 01 year under Section 11B of the Central Excise Act, 1944 applicable to service tax mutatis mutandis vide Section 83 of the Finance Act, 1994. 5. On appeal the learned Commissioner (Appeals) Noida allowed the appeal before him with the directions to the Adjudicating Authority to grant the refund by observing as under : - "7. I have carefully gone through the facts of the case and have also ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as ultra vires, appellant was not liable to pay service tax @ 1.4% of CIF on Ocean Freight. 11. Now, the question arises as to whether provisions of time bar as provided under Section 11B of the Central Excise Act, 1994 will be applicable or not when the levy of service tax in respect of "ocean freight has been declared as "ultra vires" by the Hon'ble Gujrat High Court vide its above referred judgment dated 6.9.2019. 12. In this regard, I find the 9 member bench of Hon'ble Apex Court has already deliberated upon on these kind of issues in the case of Mafatial Industries Ltd., decided on 19.12.1996 reported as 1997 (89) E.L.T. 247 (S.C.). In the said land mark judgment it has been held by the Hon'ble Apex() Court that all claims for refund except where levy is held to be unconstitutional, to be preferred and adjudicated upon under Section 11B of the Central Excise Act, 1944 or under Section 27 of the Customs Act, 1962 and subject to claimant establishing that burden of duty has not been passed on to third party. Relevant paragraphs of the said judgment of Hon'ble Apex Court reads as under: 69. There is, however, one exception to the above proposition, i.e., whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the court. Section 72 of the Contract Act may be attracted to such a case and a claim for refund of tax on this score can be maintained with reference to Section 72. This too, however, does not mean that the taxes paid under an unconstitutional provision of law are automatically refundable under Section 72. Section 72 contains a rule of equity and once it is a rule of equity, it necessarily follows that equitable considerations are relevant in applying the said rule - an aspect which we shall deal with a little later. Thus, whether the right to refund of taxes paid under an unconstitutional provision of law is treated as a constitutional right flowing from Article 265 or as a statutory right/equitable right affirmed by Section 72 of the Contract Act, the result is the same there is no automatic or unconditional right to refund. 13. I also observe that in the case of Joshi Technology Intl. 2016(389) ECI 21 (Guj.) Hon'ble HC held that the statutory time limit provided under Section 11B of the Central Excise Act, 1944 is not applicable to the claim of refund of duty paid under mistake as the same was paid under mistake of law and therefore such claim is considered as OUTSID ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment. (e) Monetary threshold limit is not applicable in the following cases - - Where the constitutional validity of the provisions of the Act or Rules is under challenge. - Where notification/instructions/order or circular has been held to be illegal or ultra virus. 7. Heard both sides and perused the appeal records. 8. I find that the issue in the present appeal is no more res integra and the Tribunal in the case of M/s RGI Meditech Pvt. Ltd. V/s Commissioner of Central Excise & Service Tax, Noida having in Service Tax Appeal No.70493 of 2020 vide Final Order No.70021 of 2024 dated 04 December, 2023 has held as under:- "8. I find that the constitutional validity of Notification No.15/2017-ST dated 13.04.2017 and Notification No.16/2017-ST dated 13.04.2017 making the importer as a person liable to pay service tax on services by way of transportation of goods by a vessel from a place outside India up to the custom station of clearance in India, even in case of C.I.F contracts, was challenged before Hon'ble Gujarat High Court in SAL Steel Ltd. v. Union of India (2020) 37 GSTL 1. The validity of Circular No.206/4/2017-ST dated 13.04.2017 was also challenged in the said wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the writ applicants by way of show cause notice and enquiries for collecting service tax from them as importers on sea transportation service in CIF contracts are hereby quashed and set aside with all consequential reliefs and benefits. 9. In view of above authoritative pronouncement, the issue involved in the present case is no more res-integra and the Appellant cannot be fastened with any service tax liability on ocean freight. 10. Further, the Appellant has specifically pleaded in its reply to show cause notice and appeal memo submitted before the Appellate authority that the goods were imported under C.I.F contracts. This categorical pleading of the Appellant has not been disputed by the revenue in the adjudication order as well as the impugned order. This being the case, the present case is squarely covered by the dicta laid down in SAL Steel Ltd. (supra) and accordingly it is held that the Appellant is not liable to pay service tax on ocean freight. 11. As regards the appeal preferred by the revenue against the judgment of Hon'ble Gujarat High Court, no stay order has been passed by the Hon'ble Supreme Court and therefore the dicta laid down in SAL Steel Ltd. (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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