TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 1429
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....y of "supply of tangible goods service"; that they had been erroneously charged by Aban under "mining service"; that the same was paid by them erroneously for the period 01.06.2007 to 15.05.2008. The original authority rejected the said refund claim vide order dt. 08.12.2009 on the following grounds : (i) M/s.Aban Offshore Ltd. who had collected service tax under 'Mining Service' from the assesse and paid the tax to the department under Mining Service had not raised any classification dispute. (ii) The assesse had relied on the Bombay High Court judgment in the case of Indian National Ship Owners Association & Others vs UOI in support of their contention that the activity would be classified under the category of "Supply of tangible goods" service, but the department had filed SLP in the Hon'ble Supreme Court against the order of the High Court. (iii) Out of the total refund claimed, an amount of Rs. 10,42,56,531/- paid during the period from 05.09.2007 to 05.04.2008 is hit by time bar and the remaining amount cannot be sanctioned on the above grounds. (iv) The assessee had not produced any documentary evidence to show that the incidence of duty had not been passed on by them t....
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....ly of rigs by Aban is only for supply of tangible goods and not mining service. However, in the INSA judgment, the activities involved mere supply of vessels which are in turn used for supply of goods, transport of personnel etc. However, in the instant case, the activity done by Aban is supply and operation of rig. As the rig itself is directly involved in mining activity, the certificate produced by appellant from M/s. CPCL to the effect that the former had neither invoiced service tax nor they had paid service tax is not accepted since appellant is not providing any service to CPCL to charge and collect service tax but is only clearing finished goods, namely, crude oil to CPCL. Hence respondents have not proved that they have not passed on tax burden to others. iv) Following the ratio laid down by the Hon'ble Supreme Court in CCE Kanpur Vs Flock India Private Ltd. - 2000 (120) ELT 285 (SC), the claim of the respondents for refund without disputing classification accepted by the service provider is not acceptable. 4. On the other hand, Shri N. Venkatraman, Senior Advocate representing the respondents made oral submissions which are broadly summarized as under : i) In the relat....
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.....07.2011 (page 44 of compilation) certifying that invoices raised by respondents for sale of crude oil did not contain any element of service tax an CPCL have not paid any service tax as on date. v) Aban Offshore Ltd. vide a certificate dt. 1.3.2011 (page 45 of compilation) have confirmed that service tax amount of Rs. 13,88,47,930/- paid by them to the department, has been collected as service tax from respondents; that they have not applied for / or claimed any refund on the said service tax amount paid by them; that they have no objection for refund of the above service tax to the respondents. vi) The expert opinion given by Professors of Indian School of Mines, Department of Petroleum Engineering, Dhanbad has specifically opined that the impugned floating production system is not capable of carrying out any drilling or work-over operations because the crucial technological requirements such as motion and weathervane compensation systems and many other drilling equipments, which are required for drilling are not available in the vessel; hence it is exclusively used for post production operations only; based on the scope of the work and considering capability of the vessels, th....
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....d was that respondent had not disputed the classification of their activity under "mining service" while making payment of the service tax amount being claimed for refund, later by respondent. Original authority had also observed that the judgment of the Hon'ble Mumbai High Court in the INSA case has not been accepted by the department and that appeal has been filed against that judgement in the Supreme Court. The submission of appellants that limitation period of Section 11B ibid would not be applicable to them since the tax was paid under mining service by misinterpretation of law and hence collected by department without authority of law, was not accepted by original authority on the grounds that classification of service under mining service was not contested by the claimant. With regard to the unjust enrichment original authority held that appellants had not produced sufficient documentary evidence to prove that tax element has not been passed on to their customers. 6.2 We find that the lower appellate authority has taken note of the grounds raised in the SCN and the rejection of the refund claim thereon on the said ground by the original authority in para 2.2 and 5.1 of the ....
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....e of the expert opinion produced by the respondent. Nor has the department come forth with any counter expert opinion from another independent and credible authority. Indubitably, the Indian School of Mines, Dhanbad is a National Institute of repute, and, independent opinion given by the three Professors of the Department of Petroleum Engineering of that Institute deserves to be given respect and credibility, unless that opinion is contradicted by another expert authority of equal standing, which is not the case here. We therefore find merit in the reliance of Ld. counsel on the Tribunal's decisions in Doyang Tea Estate (supra) and Farm Fresh Foods Pvt. Ltd. (supra), which have inter alia laid down that the expert opinion brought by the assessee cannot be brushed aside unless demolished by opinion of another expert. Hence we do not find any infirmity in the LAA accepting the expert opinion submitted by the respondent to assist in his conclusions that the activity of supply of floating rigs by Aban would be covered under the category of "supply of tangible goods service" and that therefore there is no liability to pay service tax for the said supply of floating rigs during the dispu....
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....he requisite manner and form as prescribed, it is incumbent on the authority to deal with such an application. Where there is an assessment order, the authority will take it into account in deciding the application for refund. If such assessment order has been reviewed or modified in appeal such further order will obviously be taken into account. In other words, under Section 27 of the Act, as it now stands, it is not open to an authority to refuse to consider the application for refund only because no appeal has been filed against the assessment order, if there is one. 13. As far as the present case is concerned, there was indeed no assessment order as such passed by the customs authorities. Although under Section 2(ii) of the Act, the word 'assessment' includes a self-assessment, the clearance of the goods upon filing of the B/E and payment of duty is not per se an 'assessment order' in the context of Section 27(1)(i) as it stood prior to 8th April, 2011, particularly if such duty has not been paid under protest. In any event, after 8th April, 2011, as noticed hereinbefore, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such p....
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.... Constitution of India which mandates that no tax shall be levied or collected except by authority of law. Since the Education Cess and Secondary and Higher Secondary Education Cess collected from the petitioner is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the respondents have no authority to retain the same. If the adjudicating authority was not satisfied with the Chartered Accountant's certificate and the other material produced by the petitioner, he could have called upon the petitioner to produce further documentary evidence in support of its claim that it had not passed on the incidence of duty to the purchaser. However, without affording a reasonable opportunity to the petitioner to produce documentary evidence in support of its claim that there was no unjust enrichment, the adjudicating authority was not justified in holding that there was unjust enrichment. Therefore, the finding that the petitioner's claim is hit by unjust enrichment cannot be legally sustained." 11. A similar view has been taken by the Bombay High Court in the case of Parijat Construction Vs. Commissioner Excise, Nashik, reported in 2018 (359) ELT ....