9911796707
TMI Blog2025 (5) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... in-original passed by the first adjudicating authority. 2. The facts of the case in brief are that the appellant filed refund claim under Section 11B of CETA, 1985 for Rs. 5,81,817/- on 16th April, 2015 on the ground that they have wrongly paid service tax during the period April-2014 to March-2015 on specified services on which exemption was available to appellant under Sr. No. 21 (d) of Notification No. 25/2012-ST dated 26th June, 2012. The appellant submitted refund claim of Rs. 5,41,322/- on 18th May, 2015. The refund was sought on the premise that GTA service received in relation to goods manufactured by appellant are eligible for exemption from payment of service tax on freight with effect from 1st April, 2013. Show cause notice date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is eligible for exemption under Sr. No. 21 (d) of Notification no. 25/2012-ST dated 26th June, 2012 as amended, in respect of input and final product transported to and fro to factory. The learned Commissioner also considered the issue whether on non-submission of document at service tax office and appellant's unavailability to prove that incidence of tax has not passed on to customers are enough ground to reject the claim or not. Regarding the first issue, the learned Commissioner held that all edible items stated in the show cause notice that qualified for food stuff and transported by appellant are entitled for exemption under Sr. No. 21 of the Notification No. 25/2012 dated 28th June, 2012 as amended for period covered under show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir claim and in addition thereto, as the record with regard to whole year would be bulky, the appellant had also requested the adjudicating authority, to direct any concerned officer to inspect the said documents. However, the authorities below did not consider the sample copies of invoices / bilties placed by the appellant on record. Therefore, the impugned order is not sustainable and must be set aside. 5. The learned counsel for the appellant also argued that the authorities below grossly erred in rejecting the refund claim filed by the appellant in as much as the appellant being eligible for exemption from payment of service tax and was not required to pay the service tax but the same was paid by the appellant, therefore, the amount pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenge needs to be modified to that extent that the amount of refund allowed of Rs. 3,17,031/- shall be refunded to the appellant. Further, in respect of amount which was rejected under limitation following the ruling by Hon'ble Karnataka High Court relied upon by learned counsel for the appellant, it is held that the said amount did not constitute service tax and therefore, was not liable to be subjected to the provisions of Section 11B in so far as limitation is concerned and therefore, the said amount needs to be refunded to the appellant. As held earlier, since the entire amount was paid as reverse charge, the incidence had not been passed on to anybody, but self and therefore the entire amount is not covered under unjust enrichment. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by appellant are entitled for exemption under Sr. no. 21 of the Notification no. 25/2012 dated 20th June, 2012 as amended, for period covered under show cause notice. No appeal has been filed by the department against the above mentioned findings. Therefore, it has become final. It is pertinent to mention here that the finding of the Commissioner that exemption under Sr. No. 21 (d) of Notification No. 25/2012-ST dated 26th June, 2012 as amended must be interpreted in such a way so as to hold that edible items stated in the show cause notice qualified for foodstuff which were transported by appellant during the period covered under the show cause notice and they are entitled for exemption under Sr. No. 21 of the Notification No. 25/2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voices / bilties submitted by the appellant to substantiate their claim. The appellant is directed to submit all the original documents or other evidence in support of the refund application irrespective of the fact that the record would be bulky or there may be very huge number of invoices. As this appeal is very old pertaining to year 2017, the Adjudicating Authority shall complete the exercise preferably within 3 months. 9. Accordingly, the appeal is allowed by way of remand to the Adjudicating Authority. The impugned order passed by the Commissioner (Appeals) dated 17th August, 2016 and the order-in-original dated 13th November, 2015 are set aside. The Adjudicating Authority, is directed to consider the matter afresh in the light of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
