TaxTMI 
TaxTMI 
2017 (1) TMI 549
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....ansportation of natural gas through pipeline. The transportation charges of natural gas are regulated by the Central Government through the Petroleum and Natural Gas Regulatory Board of India (for short, 'PNGRB'), in terms of the PNGRB (Determination of Natural Gas Pipeline Tariff) Regulations, 2008. Price towards the transportation charges are provisional and are revised from time to time by PNGRB by way of its circulars. During the relevant period, the appellant received the services from GAIL (India) limited (for short, 'GAIL'), who is registered with service tax Department in Gwalior. On the basis of invoices issued by GAIL, the appellant made payment of the transportation charges along with service tax thereon to GAIL. ....
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....mmissioner vide order dated 25.10.2011. Appeal against the said order was upheld by the ld. Commissioner(Appeals), Central Excise, Indore vide impugned order dated 27.03.2012. The ground for denial of refund in respect of the said claim are that the refund claim of the appellant is barred by limitation of time, prescribed under section 11 B of the Central Excise Act, 1944; that chartered accountant certificate showing refund claim as receivable in the balance sheet is not sufficient to pass the test of unjust enrichment; that the appellant has not produced any evidence to show payment of alleged service tax by GAIL in the Government Account; that the reduction in transportation charges is a matter between GAIL and the appellant and the same....
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..... vs. Commissioner, reported in 2016 (42) STR 694 (Tri.-Del.) As regards the time bar aspect raised by the authorities below for rejection of the refund application, the ld. Advocate submitted that the assessment was provisional and upon finalization of the same, since GAIL has issued the credit note on 20.09.2010, the date of issuance of such credit notes should be construed as the date of computation of the limitation period inasmuch as finalization of the transportation charges and actual liability on that count was known on the said date. Since the refund application was filed on 17.01.2011, which is within the stipulated time of one year from the date of such finalization, the same is within the time limit prescribed under Section 11 B....
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....aim refund, subject to the conditions that the tax/duty was collected from or paid by him; and the incidence of such tax/duty had not been passed on by him to any other person. Thus, in absence on any stipulation contained in the statutory provisions, the service recipient is well entitled to claim refund of service tax paid by him to the service provider. With regard to the issue, as to whether, the service recipient can claim refund of service tax, the Hon'ble Allahabad High Court, in the case of Indian Farmers Fertilizers Coop Limited (supra), have ruled in affirmative. The relevant paragraph is extracted below: "15. The Tribunal was clearly, in our respectful view, correct and justified in following this principle. The assessee is....
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....rovider of the service. That would be a matter of a legitimate choice for a claimant of refund. In this case, the appellant had initially filed a claim before the Delhi Commissionerate which rejected the same on the ground that it had no jurisdiction since the appellant was pursuing business outside its jurisdiction. The Bilaspur Commissionerate also rejected the refund claim on the ground that the provider of the service is not within its jurisdiction. The rejection by both Commissionerates is in my view unsustainable. 7. Therefore, the appellant in the capacity of recipient of service, can file refund application before the authorities having jurisdiction over the service recipient or before the jurisdictional authorities of the service ....
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.... collected from the various recipients and deposited by GAIL with the Government, persons who have borne the incidence of service tax viz. the service recipients would be filing with the Department of Central Excise & Customs, a refund claim under the provisions of Central Excise Act in order to obtain the refund due to them. This letter is given to enable your office to process the said refund claims filed by the service recipients." 8. On perusal of the annual accounts and Balance Sheet available in the file, we find that the subject refund had been reflected in Schedule 13 under the head "Loans and Advances" as "Receivable-Govt./Statutory Bodies". Such fact is also evident from the certificate dated 12.01.2011 issued by M/s Ritu G.P.....