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2023 (12) TMI 44
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....lant]. 2. In order to appreciate the controversy involved in this appeal it would be useful to narrate the relevant factual aspects. It transpires that pursuant to the order dated 13.08.2014 passed by the Tribunal in the own case of the appellant pertaining to the Head Office, a refund claim was filed by the appellant in July, 2015 seeking refund of service tax paid under goods and transport agency service [GTA] on a reverse charge basis for the period 2005-11. It needs to be stated that the Tribunal in the order dated 13.08.2014 had specifically held that service tax could not be levied under GTA service under reverse charge basis on the appellant. 3. However, a show cause notice dated 17.08.2015 was issued to the appellant contendin....
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....nit and that the refund claim was not barred by time. However, the Commissioner (Appeals) remanded the matter for the limited purpose of verification of documents. The relevant portion of the order passed by the Commissioner (Appeals) is reproduced below: "10. In view of the Final Order No. ST/A/52655/2016- CU(DB) dated 28.07.2016 (arising out of the Order-in- Original No. COMMISSIONER/RPR/17/2008 dated 19.02.2008) and No. ST/A 53553/2016-CU(DB) dated 26.08.2016 (arising out of the Order-in-Appeal No. 18(ST) RPR-I/2010 dated 30.03.2010) of the Hon'ble Cestat, New Delhi, no liability to pay service tax arose on the appellant as recipient of GTA services under the reverse charge mechanism and therefore the appellant became entitl....
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.... of the matter from the Chhattisgarh High Court, has been challenged by the department before the Supreme Court and though the Civil Appeal is pending, no stay has been granted by the Supreme Court. 8. Pursuant to the order dated 22.11.2016 passed by the Commissioner (Appeals), the Assistant Commissioner by order dated 30.1.2018 held that the bar of unjust enrichment would not be attracted since the amount was paid under reverse charge basis. However, the refund claim was rejected by the Assistant Commissioner following the decision of the Supreme Court in Commissioner of Central Excise and Service Tax, Raipur vs. Singh Transporters [2017 (4) G.S.T.L. 3 (S.C.)]. 9. It is against the aforesaid order dated 30.01.2018 passed by the Assis....
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....f Central Excise and Service Tax, BBSRI [2022 (57) G.S.T.L. 242 (Tri. Kolkata)]. 13. Shri Rajeev Kapoor, learned authorized representative appearing for the department has however supported the impugned order and has contended that in view of the directions issued by the Commissioner (Appeals) on 22.11.2016, the Assistant Commissioner and the Commissioner (Appeals) were justified in examining whether the appellant, on merits, would be entitled to refund or not. 14. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 15. All that is required to be examined in this appeal is as to whether the Assistant Commissioner and the Commi....
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....ner (Appeals) in the order dated 22.11.2016 and this was not a matter which was remanded to the Assistant Commissioner. 18. This apart, what also needs to be noted is that the decision of the Supreme Court in Singh Transporters would not be relevant for the purpose of the controversy involved in this appeal because it has been found as a fact in this appeal that consignment notes had not been issued by the transporters, which is an essential requirement for a service to be classified as GTA service. 19. This is what was also observed by the Kolkata Bench of the Tribunal in Mahanadi Coalfields Ltd and paragraph 12 of the decision is reproduced below: "12. We also find that the same view has been consistently followed by the co....