2021 (6) TMI 860 - AT - Service Tax

Tribunal grants refund for Service Tax & interest under Reverse Charge Mechanism, highlighting taxpayer protection

M/s. Nilkamal Limited Versus Commissioner of G.S.T. and Central Excise, Puducherry

The Tribunal overturned the rejection of the appellant's refund claim for Service Tax and interest paid under Reverse Charge Mechanism on freight services ... Refund of the Service Tax - Tax was paid under mistake of law - change in tax regime - freight services received from foreign shipping line - Reverse Charge Mechanism - N/N. 15/2017-ST and 16/2017-ST, both dated 13.04.2017 - HELD THAT:- The Revenue having collected per force the Service Tax along with interest, the appellant is pushed into a situation where its refund claim is denied and even the credit of Service Tax so paid is also not allowed to be availed, with the introduction of the CGST Act in 2017. It is the settled position of law that a tax payer cannot be a victim of the change in law. The reliance placed on the decision of the Hon’ble High Court of Madras in the case of M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) [2018 (7) TMI 276 - MADRAS HIGH COURT] is very apt, wherein it has been categorically held that the Service Tax paid under mistake of law has to be refunded irrespective of the period covered as refusal thereof would be contrary to the mandate of Article 265 of the Constitution of India. The denial of refund is contrary to the settled position of law - the rejection of refund are set aside - Appeal allowed - decided in favor of appellant. Issues:Seeking refund of Service Tax and interest under Reverse Charge Mechanism on freight services from foreign shipping line during April to June 2017.Analysis:The appellant sought a refund of Service Tax and interest paid under Reverse Charge Mechanism on freight services from a foreign shipping line during a specific period. The challenge arose due to two notifications dated 13.04.2017, requiring importers to pay Service Tax on transportation services by vessel from outside India up to the Custom station in India, even in CIF contracts. The High Court of Gujarat in a related case struck down the levy as ultra vires to certain sections of the Finance Act, 1994. Despite this, audit officers insisted on payment, leading the appellant to pay under protest and later file a refund claim, citing the payment as a mistake of law. However, the Show Cause Notice rejected the refund claim, stating it was not covered by relevant sections of the CGST Act, 2017 and the Central Excise Act, 1944.The Order-in-Original and subsequent Order-in-Appeal upheld the rejection of the refund claim. The Adjudicating Authority acknowledged the appellant's argument regarding revenue neutrality and the eligibility of the Service Tax paid under Reverse Charge Mechanism as an input service under the CENVAT Credit Rules, 2004. The appellant's inability to transition the credit due to the timing of payment prompted the refund claim. Despite this, the refund claim was deemed ineligible under the CGST Act, 2017 and the Central Excise Act, 1944. The rejection was based on the provisions of Section 142 of the CGST Act and the inapplicability of cash refund under Rule 5 of the CENVAT Credit Rules.The Tribunal considered the appellant's situation where the Service Tax was collected forcibly, leading to the denial of the refund claim and disallowance of the credit under the CGST Act. Citing legal precedent, including a decision by the High Court of Madras, the Tribunal emphasized that a taxpayer cannot suffer due to changes in the law. Refusal to refund Service Tax paid under a mistake of law was deemed contrary to the Constitution of India. Consequently, the Tribunal set aside the impugned order and the rejection of the refund claim, allowing the appeal with any consequential benefits as per the law.