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TMI Blog2024 (11) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... ocean freight on which the service tax was paid and refund was sought, therefore the ocean freight itself is not taxable in the light of SAL Steel Limited. He submits that the Ld. Commissioner (Appeals) without any conclusive filing on the ocean freight being not taxable, remanded the matter to the adjudicating authority to examine the refund claim in terms of Notification No.12/2013- ST dated 01.07.2013. Therefore, the order of the Commissioner (Appeals) to this extent is absolutely illegal and contrary to the judgment given by the Hon'ble Gujarat High Court in the case of SAL Steel Limited. He submits that merely because the matter of SAL Steel Limited against the Hon'ble Gujarat High Court judgment pending before the Supreme Court, the refund on this count cannot be withheld. He submits that since as per the SAL Steel judgment the service tax paid by the appellant is itself not correct. Hence, the same is refundable without taking recourse to Notification No.12/2013-ST. He placed reliance on the following judgments:- * SAL Steel Limited v. Union of India 2019 (9) TMI 1315 - Gujarat High Court * 3E Infotech v. CCE - 2018 (7) TMI 276 - Madras High Court * Commissioner of Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ocean Freight, under reverse charge, in terms of the said Notification. Therefore, irrespective of the constitutional validity of the levy of service tax on Ocean Freight, which is before the Hon'ble Supreme Court on an appeal by the department in the case of SAL Steel Ltd., the appellant are eligible to refund of the service tax paid in respect of the services used in the SEZ for authorized operations in terms of the said Notification. Therefore, the adjudicating authority ought to have examined the refund claim filed by the appellant on merits. 7.2 In the instant case, it is observed that it is not disputed that the Ocean Freight services have been received and used in the SEZ by the appellant. Accordingly, the appellant are eligible for refund of the service tax paid on Ocean Freight, subject to fulfillment of the conditions specified in Notification No.12/2013-ST dated 01.07.2013. There is no finding in the impugned order as to whether the appellant have fulfilled the condition specified in the said Notification. Also in the absence of the requisite documents and details, it is not possible for this authority to decide on this aspect. Therefore, the matter pertaining to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge Notification No.30/2012-ST is struck down as ultra vires Sections 64, 66B, 67 and 94 of the Finance Act, 1994; and consequently the proceedings initiated against 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." 4.3 This Tribunal as regard the issue of levy of service tax on ocean freight passed the judgment in the case of Commissioner of Service Tax, Ahmedabad vs. Kiri Dyes & Chemicals Ltd. wherein, considering the judgment of Hon'ble High Court of Gujarat in the case of SAL Steel Limited passed the following order:- "The issue involved in the present case is whether the appellant is liable to pay service tax on the service on Ocean Freight or otherwise. 2. Shri Sanjay Kumar, learned Superintendent (AR) appearing on behalf of Revenue/ Appellant submits that though this issue is decided by Hon'ble Gujarat High Court in the case of SAL Steel Limited but the Revenue has preferred SLP before the Hon'ble Supreme Court therefore, this matter may be kept pending till outcome of Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. dated 06.09.2019 referred to supra. In this view of the fact, the revenue authorities were of the view that the refund claim filed by the Appellant is time barred as per the provisions of Section 11B of the Central Excise Act, 1944 made applicable to Finance Act, 1994 vide Section 83 of the Finance Act, 1994. 4.2 We find that Hon'ble Supreme Court dismissed the civil appeal filed by the revenue department on 01.09.2023 in case of M/s. Kiri Dyes & Chemicals Ltd. reported in 2023 (9) TMI 305 - SC holding that levy of service tax is not maintainable. Therefore, it was possible for the Appellant to file the refund claim within one year from 01.09.2023 i.e. up to 31.08.2024. Admittedly in the facts of the present case the Appellant have filed the refund claim on 23.11.2020 i.e. much before 31.08.2024. Our observation is fortified with the fact that the show cause notice dated 28.12.2020 in the present case itself has recorded that the revenue department did not accept the decision of Hon'ble Gujarat High Court in case of SAL Steel Ltd. supra and revenue department preferred further appeal before Hon'ble Supreme Court. Therefore, rejection of refund application filed by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt paid by petitioner, admittedly, has to be refunded. In fact, it is also admitted that an amount of Rs.10,48,11,737/- is refundable to petitioner. The credit of refund is the only issue because Mr. Adik, as an officer of this court and in fairness, agreed that Government cannot retain any amount without any authority of law. 12. Sub-Section (3) of Section 142 of the Act very clearly says "any amount eventually accruing shall be paid in cash". In the circumstances, we are of the opinion that respondents ought to have directed the sanctioning authority to refund the amount of duty refundable to petitioner in cash instead of credit in CENVAT account, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944. 13. Therefore, Rule made absolute in terms of prayer clauses (a) and (b) of both petitions, which are quoted above. 14. The amount shall be paid together with accumulated interest in accordance with law within four weeks of this order being uploaded." 4.5. It may be noted here that the time limit of one year from the "relevant date" for filing of re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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