TaxTMI 
TaxTMI 
2018 (9) TMI 388
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....ng to Rs. 87.36 Lacs from running bills of the appellants on the amount of gross work executed by them after 01.07.2012. Aggrieved by the action of HBH, the appellants filed writ petition vide CWP No.12304 of 2015 before Hon'ble Punjab & Haryana High Court where the High Court vide Order dated 11.08.2016 held that as the HBH is government authority having been set up under a State Act and is wholly controlled by the State Government, the services provided to it were exempted. Consequent to the judgment of Hon'ble High Court, HBH refunded them the sum of Rs. 61,80,073/- in January, 2017. However, the HBH did not refund them the amount of Rs. 25,60,293/- being deposit with the Service Tax Department and informed the appellants accordingly. Th....
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....sing Board Haryana. Second ground of rejection was that the activity of the appellant was held to be not liable to service tax and the refund claim has been filed by the appellant on the service tax has been paid by the Housing Board Haryana and not by the appellant directly. It was held that the ultimate customer has to bear the burden of service tax hence it is to be examined whether the incidence of service tax paid by the Housing Board Haryana has to be passed on to the customer or not which can be done only when the refund claim is filed by the Housing Board Haryana and not by the present appellant. On these grounds, the appeal was rejected. Aggrieved from the same, the appellant have filed this appeal. 3. Ld. CA for the appellant s....
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....KL/ST/32/2017-18 dt.22.2.2018. He also placed on record a copy of the refund order passed by the Deputy Commissioner, Central Excise Division, Ambala, in which the claim was initially rejected by the adjudicating authority. Ld. CA also placed on record page 151 of Central Excise Manual wherein it is specified that refund can be filed by the assessee or even a person, who has borne the duty incidence. 4. Ld. AR reiterated the findings in the impugned order of the Commissioner (Appeals). 5. Heard both sides and perused the record. 6. I find that the first issue is whether the appellant have locus standi to file refund claim or not. I find that this issue is already settled by the judgment of the Hon'ble Supreme Court in the case of O....
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.... of sub-section (2) substituted by that Act : Provided further that the limitation of six months shall not apply where any duty has been paid under protest." 6. The said provision is made for obvious reasons. Though the duty under Section 11B of the Act is payable by the manufacturer, a manufacturer would generally pass on the burden of the excise duty to the buyer or it may be some other person. It is for this reason, a person who is ultimately aggrieved with the payment of the said duty and challenges the order successfully can seek the refund. This becomes apparent from the reading of clause (e) to Explanation (B) appended to the aforesaid provision which is as under : "Explanation. - For the purposes of this section....
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....es by the State. This is equally true of Section 27 of the Customs Act, 1962." 8.We are, therefore, of the opinion that the appellant who had paid the excise duty to the manufacturer, viz., M/s. Indian Oil Corporation Ltd. (hereinafter referred to as 'IOCL') and BPCL in the instant case, had the necessary locus standi to file the application claiming the refund of the duty." 7. In view of the above judgment of Hon'ble Supreme Court, I hold that the appellant have locus standi to file refund claim in this case. I also find that the department has entertained the refund claim of another similarly placed contractor, as is evident from the Order-in-Appeal No.Appl/PKL/ST/32/2017-18 dt.22.2.2018 of the Commissioner (Appeals) i....