TaxTMI 
TaxTMI 
2023 (1) TMI 1461
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....ate Tribunal in Service Tax Appeal Nos.85110/2020 and 85457/2020, both arising out of Order-in-Appeal dated 30 August 2019/27 October 2019 passed by the Commissioner (Appeals). 2. The facts of the case enumerated in the impugned order are as follows. The Appellant is a Private Limited Company engaged in the business of developing and operating Ports and Terminals. The Appellant had entered into a deed of confirmation with Maharashtra Maritime Board to develop a port near Karanja Creek, Uran, District Raigad on lease for 30 years on build, own, operate and transfer basis. The Appellant had availed services of construction from one ITD Cementation India Ltd. and Sahara Dredging Ltd., and had entered into contract agreements with ITD Cementat....
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....ssioner (Appeals) who partially allowed the refund claim amounting to Rs.5,90,99,124/- with consequential relief in favour of the Appellant. Against the above-said order-in-appeal, the Appellant filed an appeal on 27 January 2020 for the prior period to 27 October 2016 for the rejected amount of Rs.6,13,77,646/- before the Appellate Tribunal. 5. The Respondent also being aggrieved against the abovementioned order-in-appeal granting refund of Rs.5,90,99,124/-, filed an appeal on 17 March 2020 before learned Appellate Tribunal against the said order along with stay application. The learned Appellate Tribunal on hearing the stay application of the Respondent, dismissed the same on 07 September 2020. Thereafter the Respondent granted refund am....
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....ellant had no opportunity to deal with the same. In that context, we refer to the arguments made by the parties before the Tribunal. 9. Before the Tribunal, the Appellant submitted that the amount which they claimed as refund was paid by them to their service providers, and they had also claimed the credit of the amount paid as service tax to their sub-contractors. It was contended that after the introduction of the GST regime, they had transferred this CENVAT Credit as ITC credit to their GST Input Tax Credit Ledger, for which claim through Trans-1 was made and Input Tax Credit (ITC) was allowed. It was contended that when it was found that the payment of service tax was erroneously made by them to their subcontractors, they had filed the....
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....e that the definition in Section 11B of Central Excise Act is not unreasonable just because it does not include the time of knowledge on the part of the assessee. These were the rival contentions before the Tribunal. 10. The Tribunal, however, proceeded on a different footing with reference to the decision of the Supreme Court in the case of ITC Ltd. V. Commissioner of Central Excise 2019 (368) ELT 216 (SC) and made following observations: "4.5 Counsel for the Appellant submitted that what they are claiming is the refund of the accumulated CENVAT Credit which pas accumulated in their credit account for the reason of the payment of service tax which was not due from them. The argument of the counsel though appears attractive but needs to ....
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....t in their Cenvat account as required by the then Notification No.27/2012, dated 18-6-2012 and when the GST was introduced, there was no amount lying in the balance in the appellant's record. Further, provision to sub-section (3) of Section 142 of Central Goods and Services Tax Act, 2017 is not applicable in the present case. The appellants are entitled to take the re-credit of the Cenvat for which they had filed the refund claims and the said amount will not lapse as per Section 142 of the Central Goods and Services Tax Act, 2017." 4.7. The decision of Bangalore Bench in the case of Wave Mechanics, supra was followed by us in the case of Alumatic Cans Pvt. Ltd. [Final Order No A/85937/2020 dated 02.12.2020]. 4.8 In the additional sub....
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....he original authority for considering allowing the re-credit of the amounts of ITC Credit debited by the Appellant for the processing of these refund applications, if permissible under the GST Law." 11. From the facts and the arguments before the Tribunal and the reasoning given by the Tribunal, it is clear that the ground on which the Tribunal has remanded the proceeding was neither the case of the Appellant nor of the Respondent nor any opportunity was given to the parties to meet this case. This assertion of the learned counsel for the Appellant is not denied by the learned counsel for the Respondent. 12. Therefore, before us there is a consensus that a new ground is made out by the Tribunal while passing the impugned order. The griev....