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2024 (3) TMI 182
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....g course of audit it was observed that appellant was importing inputs for manufacture of finished goods on which he was required to pay service tax, under reverse charge mechanism (RCM), on the services of transportation of goods provided by foreign shipping lines, in terms of Notification No 03/2017-ST dated 12.01.2017 read with Circular No 206/04/2017-ST dated 13.04.2017. 2.3 On being pointed appellant deposited an amount of Rs 6,53,724/- towards tax, interest of Rs 84,777/- and penalty of Rs 98,059/- vide Challan No 037 dated 11.01.2018. 2.4 Appellant filed the refund claim for an amount of Rs 6,53,724/- claiming benefit of Notification No 10/2017-CE (NT) dated 13.04.2017. A show cause notice dated 29.06.2018 was issued to the appellant stating as follows: "As per para 3 of Circular No 206/4/2017-ST dated 13.04.2017, "Clarification has also been sought with regards to calculation of service tax regarding service of transportation of goods by sea provided by a foreign shipping line. In case of service of transportation of goods by sea provided by a foreign shipping line to foreign charterer w.r.t goods destined for India, an option has been provided in the service ....
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....e of Gokul Agro Resources Ltd [2020-TIOL-691-HC-AHM-GST]. • The SCN was issued on dispute on admissibility of Cenvat as per Rule 9(1)(b) of Cenvat Credit Rules, 2004, however both the original authority as well as Commissioner (Appeal) did not deal with the issue as under the said rule credit of only input and capital goods was denied and not the credit of input service. Both the authorities decided the issue by travelling beyond the issue raised in the notice which is not permissible under law. Reliance placed on • Tirupati Pipe & Allied Industries (P) Ltd [2008 (227) ELT 147 (T)] • Tilrode Chemicals (P) Ltd [2011 (264) ELT 306 (T) affirmed by Hon'ble High Court of Karnataka as reported at [2015 (317) ELT A-190 (Kar)] • The SCN was not maintainable as Rule 9(1)(b) of Cenvat Credit Rules as restriction on credit of tax paid is limited on input tax credit and credit of capital goods alone if paid by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any provisions of the Excise Act, or of the Customs Act, 1962 (52 of 1962) or the rules made there under with intent to evade payment of d....
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....isions of this section allowed to carry forward eligible Cenvat Credit mentioned in the Return of June,2017, in GST regime through Tran-1. Further, the claimed loss of credit of duty does not make the appellant eligible for the refund of tax paid which the appellant was required to pay as per law. In the case of WILLOWOOD CHEMICALS PVT. LTD. Versus UNION OF INDIA [2018 (19) G.S.T.L. 228 (Gujarat)] in which the Hon'ble High Court held that:- "In the present case, we have noted the statutory provisions, the scale of operations and the possible repercussions; if such time limit contained in Rule 117 is annihilated and a registered person is allowed to make declarations of the left over residuary duty of credit at the time of migration to the new tax structure. The time limit provisions, we have already stated more than once, under such circumstances, cannot be seen as merely technical in nature.' [Para 40]". 5.1. I find that both the appellant as well as the adjudicating authority have misconstrued the issue in question and have based their arguments and findings whether or not the CENVAT Credit of the tax paid by the appellant, under RCM, was admissible, tho....
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.... 10. I also find that as per Para 2(2) of the said Notification No.10/2017-CE (NT) dated13.04.2017 "... in respect of services provided or agreed to be provided by a person located in non-taxable territory to a person located in non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India where service tax is paid by the manufacturer or the provider of output service being importer of goods as the person liable for paying service tax for the said taxable services, credit of service tax paid by the person liable fo paying service tax shall be allowed after such service tax is paid". As per clarification given in first Para of CBEC Circular No.206/4/2017-Service Tax dated 13.04.2017 which reads as "Your kind attention is invited to notification No. 1/2017-S.T., dated 12th January, 2017, whereby service tax exemption was withdrawn for services provided by a person located in non-taxable territory to a person located in non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India. Further, in relation to such services....
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....1)(b) of Cenvat Credit Rules,2004 the CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of a supplementary invoice, issued by a manufacture or importer of inputs or capital goods in them of provision of Central Excise Rules,2002 from his factory or depot from the premises of the consignment agent of the said manufacture or. importer or from any other premise from where the good are sold by or on behalf of the said manufacturer or importer in case additional amount of Excise duties or additional duties leviable under section 3 of Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from the manufacturer or importer of input of capital goods on account of duty of any non levy or short levy by reason of fraud collusion or any wilful misstatement or suppression of the fact or contravention of any provisions of the Excise Act or of Customs Act 1962(52 of 1962) or the Rule made there under with intent to evade payment of duty and that the charge that the duty has been non levied or short levied by treason of fraud, collusion or any wilful mis-stateme....
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.... Rule -9(1)(b) of the CCR, 2004 is ample clear that the credit is not available in those cases where the additional amount of tax becomes recoverable from the Service Tax provider on account of non- levy or non-payment. Thus the party was not entitled for Cenvat Credit in terms of Rules 9(1)(b) of the CCR, 2004 read with Section 11B(3) of the Central Excise ACT, 1944. Hence the question of refund of the same does not arise." 4.4 From the perusal of the refund application filed by the appellant is reproduced below: 4.5 From perusal of the above application it is evident that appellant has claimed that CENVAT credit of the amount of service tax deposited by him i.e. Rs 6,53,724/- as per the audit conducted at their factory is admissible to him as CENVAT credit as per Notification No 10/2017-CE (NT) dated 13.04.2017. As he has deposited the said amount by Challan dated 11.01.2018 after introduction of the Good and Service Tax Law with effect from 01.07.2017, he is not in position to claim the credit of the said amount, he should be allowed the refund of the said amount in cash as per section 142 (8) (b) of the Central Goods and Service Tax Act, 2017. No other ground has been....
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.... are used. The petitioner used to procure input i.e. coal, domestically as well as from outside the territory of India and for importing coal, the petitioner availed input services such as 'Port Services'. period 26.04.2017 to 29.04.2017 At the relevant point of time, the petitioner was also registered under Chapter V of the Finance Act, 1994 as a person liable to pay tax on receipt of taxable services under reverse charge mechanism as a recipient of "Goods Transport Agency Services". period 26.04.2017 to 29.04.2017 The dispute relates to the period 26.04.2017 to 29.04.2017 , when the petitioner imported 23000 MT of Coal from outside the territory of India through Haldia Port under Bill of Entry dated 27.04.2017 for using the same in or in relation to manufacture of their final product i.e. Sponge Iron. For the purposes of clearance/handing of the said coal from Haldia Port, the petitioner received bundle of services under "Port Services" from Kolkata Port Trust, Haldia. M/s Kolkata Port Trust raised their Bill dated 23.05.2017 for value of Rs. 89,36,836/- including service tax component amounting to Rs. 10,88,328/-. 23.05.2017 ....
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.... Finance Act, 1994 taking all service invoices where they were liable to pay service tax under reverse charge basis. Further it is the case of the petitioner that in the said ST-3 return the petitioner disclosed the said Input Service Credit on "port services" amounting to Rs. 10,88,328/- with a view to keep the said transaction above the board so that their claim is not lost. 31.10.2017 The time for filing TRAN-1 for claiming transitional credit was extended till 31.10.2017 vide notification issued by Central Board of Direct Taxes and Customs. However, the petitioner did not claim the aforesaid service tax paid on "port services" in TRAN-1 although by this time the original bill was received as the said CENVAT Credit of the said transaction was not included in ER-1 return which was already filed. 28.06.2018 On 28.06.2018, the petitioner submitted its refund application in Form-R, praying for refund of the CENVAT Credit of Rs. 10,88,328/- being the service tax paid on "port services". 24.07.2018 The petitioner was served with a show-cause notice dated 24.07.2018 as to why the application for refund of CENVAT Credit of Inpu....
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....r. The Hon'ble Supreme Court accepted the submission of Mr. N. Venkataraman, learned ASG on the legal proposition on the point of refund. The submissions of Mr. N. Venkataraman, learned ASG on the point of legal proposition have been recorded in para-D.1.3 Part (III), as under: - "(i) Article 265 of the Constitution provides that no tax shall be levied or collected except by authority of law. There being no challenge either to the levy or collection of taxes in these cases, taxes paid into the coffers of the Union Government or the States become the property of the Union/States; (ii) The refund of taxes is neither a fundamental right nor a constitutional right. The Constitution only guarantees that the levy should be legal and that the collection should be in accordance with law. There is no constitutional right to refund. Refund is always a matter of a statutory prescription and can be regulated by the statute subject to conditions and limitations; (iii) Even in the case of an illegal levy or a levy which is unconstitutional, the decision of the nine judges Bench in Mafatlal Industries Limited vs Union of India held that the right of refund is not au....
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....are quoted as under: "87. We must be cognizant of the fact that no constitutional right is being asserted to claim a refund, as there cannot be. Refund is a matter of a statutory prescription. Parliament was within its legislative authority in determining whether refunds should be allowed of unutilised ITC tracing its origin both to input goods and input services or, as it has legislated, input goods alone. By its clear stipulation that a refund would be admissible only where the unutilised ITC has accumulated on account of the rate of tax on inputs being higher than the rate of tax on output supplies, Parliament has confined the refund in the manner which we have described above. While recognising an entitlement to refund, it is open to the legislature to define the circumstances in which a refund can be claimed. The proviso to Section 54(3) is not a condition of eligibility (as the assessees' Counsel submitted) but a restriction which must govern the grant of refund under Section 54(3). We therefore, accept the submission which has been urged by Mr. N Venkataraman, learned ASG. 93. Parliament engrafted a provision for refund Section 54(3). In enacting such a....
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....rmation regarding the levy of taxes and their collection. That is precisely the reason why courts are averse to entering the area of policy matters on fiscal issues. We are therefore unable to accept the challenge to the constitutional validity of Section 54(3)." 9. Though in the instant case we are not dealing with section 54 of CGST Act but are concerned with transitional provisions dealing with "refund" under section 142(3) of the CGST Act "in cash" under certain circumstances in connection with taxes suffered under the previous regime. However, the fundamental concepts and the interpretation of law relating to refund would still be the same and what is to be seen is whether the petitioner qualifies for entitlement of refund under section 142(3) of CGST Act in the light of the facts and circumstances of this case. Legal proposition on the point of interpretation of transitional provisions, vested rights etc with reference to the judgements relied upon by the learned counsel of the petitioner. 10. The learned counsel for the petitioner has also referred to the judgment passed in the case of Union of India vs Filip Tiago De Gama of Vedam De Gama (supra) ....
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....al provisions contained in sub-section (1) of Section 30 of the amending Act." 12. There is no doubt about the aforesaid proposition that the transitional provisions are made to make special provision for the application of legislation to the circumstances which exist at the time when the legislation comes into force and are applicable to proceedings that were pending on the date of the commencement of the amending Act. 13. So far as the judgment in the case of J. K. Cotton Spinning and Weaving Mills Co. Ltd. (supra) is concerned, the petitioner has referred to paragraphs-10 of the said judgment, which is quoted as under: - "10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the specific provision, we must hold that Cl. 5(a) has no application in a case where the special provisions of Cl. 23 are applicable." The aforesaid judgment does not help the petitioner in any manner in view of the fact that there is no conflict amongst the various provisio....
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....d saving) read with Section 6 of General Clause Act. 16. The learned counsel has themselves relied upon a judgment passed by the Hon'ble Supreme Court in the case of State of Punjab and Ors. vs Bhajan Kaur and Ors. (supra), wherein Section 6 of General Clauses Act has been interpreted by holding that the said provision inter-alia saves a right accrued, but it does not create a right. Paragraph-14 of the aforesaid judgment is quoted hereinbelow for ready reference: - "14. ................. Section 6 of the General Clauses Act, therefore, inter alia, saves a right accrued and/or a liability incurred. It does not create a right. When Section 6 applies, only an existing right is saved thereby. The existing right of a party has to be determined on the basis of the statute which was applicable and not under the new one. If a new Act confers a right, it does so with prospective effect when it comes into force, unless expressly stated otherwise." 17. In the case of Glaxo Smith Kline PLC and Others (supra), the Hon'ble Supreme Court has upheld the view of the learned single judge of the High Court and held at Para-17 as under: - "17. The learned Single Jud....
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....oducts and if such a situation is sought to be altered, necessarily it follows that the right, which had accrued to a party such as the availability of a scheme, is affected and, in particular, it loses sight of the fact that the provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. Therefore, the Scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier Scheme was applied under which the assessees had availed of the credit facility for payment of taxes. It is on the basis of the earlier Scheme necessarily that the taxes have to be adjusted and payment made complete. Any manner or mode of application of the said Rule would result in affecting the rights of the assessees. 6. We may look at the matter from another angle. If on the inputs, the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus, a ri....
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.... in law would advance the purpose and object of CGST Act. Rather, the aforesaid interpretation sought to be given by the petitioner is contrary to the very object and purpose of section 142(3) of CGST Act which has been discussed at a later part of the Judgement. 22. So far as the judgment passed in the case of M/s. DMR Constructions (supra) by Hon'ble Madras High Court is concerned, the same related to transition of accumulated tax deducted at source which existed on the date of coming into force of CGST Act and relief was granted to the petitioner in terms of transitional credit under section 140(1) of CGST Act. 23. However, in the instant case, the petitioner failed to claim transitional credit in terms of section 140(1) of the CGST, Act and wrongly took credit of the impugned service tax in ST-3 return and thereafter claimed refund of the same by referring to section 142(3) of CGST, Act. Accordingly, the said judgement does not apply to the facts and circumstances of this case. The sequence of facts; case of the parties and the contents of the impugned orders 24. The petitioner was having Central Excise Registration for manufacture of spo....
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.... in question had expired. Further the petitioner had claimed this amount in Service Tax return ST-3 filed on 22.09.2017. 28. Thus, the petitioner missed to exercise their rights to avail of transitional credit of the service tax paid on "port services" through the mechanism prescribed under the CGST Act (Section 140) read with the existing provisions of CENVAT Credit Rules, 2002. It is also important to note that the existing provision did not permit CENVAT Credit of service tax paid on "port services" without its inclusion in ER-1 Return and in absence of such inclusion within the prescribed time line the claim of credit stood completely lost and could not be claimed in TRAN - 1 as transitional credit under CGST Act. Admittedly, the petitioner was not entitled to claim the service tax paid on "port services" in their service tax return ST-3 as the petitioner was not an output service provider and was liable to file service tax return and pay service tax only under reverse charge mechanism. Admittedly, "port services" were not under reverse charge mechanism. 29. Further, Rule 5 of CENVAT Credit Rules, 2004 permits refund only when the services are used to export g....
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....titioner had not submitted original copy of the service invoice and the refund application had not been pre-receipted with revenue stamp on the original copy. 35. In their reply to show -cause notice, the petitioner admitted that they had taken CENVAT Credit of input service in their ST-3 return filed under Service Tax. The petitioner tried to justify and explain their act as under: - (i) The reason behind disclosure of CENVAT Credit claimed on input services in the ST-3 return was not for showing use of the said services for providing output services but there was no scope for them to disclose the same in ER-1 returns which was already filed before receipt of the duty paying document. The substantive benefit of CENVAT Credit should not be denied for technical breaches and that the legislation for granting input tax credit is beneficial piece of legislation and should be construed liberally; (ii) The said services are used for procurement of inputs are amply covered in the definition of "input service" in terms of Rule 2(l) of CCR, 2004 and disclosure or non-disclosure of said credit in ST-3 and/or ER-1 are irrelevant. (iii) Ultimate eligibility ....
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....e 5 of the CENVAT Credit Rules, 2004. The Adjudicating Authority observed that the transitional provisions under the CGST Act specifically provide transition of credit through TRAN-1 and the petitioner had failed to declare its claim in proper return i.e. ER-1. Accordingly, the Adjudicating Authority, vide the Order-in-Original dated 25.01.2019, rejected the refund claim under the provisions of Section 11B of the Central Excise Act, 1944 made applicable to Service Tax vide Section 83 of the Finance act, 1994. 37. Aggrieved with the aforesaid Order in original the petitioner filed appeal reiterating the submissions made before the Adjudicating Authority. They made following main submissions before the appellate authority: i. The services were received by them during 26.04.2017 to 29.04.2017 and payment, including service tax, was made in April, 2017. But they received the invoice on 20.09.2017 and they made provisional entry in their books of account. They could not take credit in their last ER-1 return for June, 2017 which they filed on 30.07.2017 for the reason beyond their control. They could not have filed any return thereafter when Central Excise Act,....
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.... refund of such duty before the expiry of the period prescribed and, in such form, and manner. If the excisable goods are not used as inputs in accordance with the rules made, there is no question of any refund. The language of the Rule 5 of the CENVAT Credit Rules, 2004 indicates that where any input or input service is used in the final product, which is cleared for export etc. or used in the intermediate product cleared for export or used for providing output service which is exported, then, the CENVAT Credit in respect of the input or input service so used, shall be allowed to be utilised by the manufacturer or provider of output service towards payment of duty of excise on any final product cleared for home consumption or for export , on payment of duty or service tax on output service. When for any reason, such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitation as may be specified by the Central Government by a notification. f. The appellate authority referred to a judgement passed by the North Zonal Bench of the CESTAT in the case of Purvi Fabrics & Texturise (P) Ltd. vs Commissio....
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....urn for the month of June, 2017. The appellate authority found nothing in Rule 5 permitting refund of unutilised credit. The appellate authority held that the present situation is not a case of a manufacturer or producer of final products seeking to claim CENVAT Credit of the duty paid on inputs lying in stock or in process when the manufactured or produced goods ceases to be exempted goods or any goods become excisable. The appellate authority also held that refund of CENVAT Credit is permissible where any input is used for final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export. Therefore, in the scheme of the rules, what is sought by the petitioner is not permissible. Thus, the attempt by the petitioner to claim refund of CENVAT Credit was held to be not allowable and the appeal was rejected. Interpretation of section 142(3) read with section 140(1), 140(5) and section 174 of CGST Act vis-a vis the facts of this case. 39. The relevant portions of the aforesaid sections as relied upon by the learned counsel for the petitioner during the course of arguments are as u....
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....ined under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944): PROVIDED that where any claim for refund of CENVAT Credit is fully or partially rejected, the amount so rejected shall lapse: PROVIDED FURTHER that no refund shall be allowed of any amount of CENVAT Credit where the balance of the said amount as on the appointed day has been carried forward under this Act" The Sections 173 and 174 of CGST Act are quoted as under :- "173. Amendment of Act 32 of 1994 Save as otherwise provided in this Act, Chapter V of the Finance Act, 1994 shall be omitted. 174. Repeal and saving (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (1 of 1944) (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Additional Duties of Excise (Textiles and Textile Articles....
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....tion of the particular matters referred to in sub- sections (1) and (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal." 40. Section 142 of the CGST Act, 2017 provide for Miscellaneous Transitional Provisions. The following are the pre-conditions of refund in cash under section 142(3) : - a. Sub Section-(3) deals with claim for refund filed before, on or after the appointed day. Thus it, interalia, deals with applications for refund filed before the appointed date and pending on the appointed date apart from the refund applications filed on or after the appointed date. b. Further the refund application should be for refund of any amount of CENVAT Credit, duty, tax, interest or any other amount paid under the existing law. c. Such application filed before, on or after the appointed day is to be disposed of in accordance with the provisions of existing law. d. If any amount eventually accrues the same is to be refunded in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the....
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....entral Excise Act, 1944, as it stood immediately before the appointed date, does not sanction any refund where the assessee has failed to claim CENVAT Credit as per CENVAT Credit Rules, 2004 and has lost its right to claim such credit by not claiming it within the time prescribed. Further section 11B also has its own strict time lines for claiming refund. Rule 5 of the CENVAT Credit Rules provides for refund only when the inputs are used in relation to export, which is not the case here. These aspects of the matter have been rightly considered and decided against the petitioner while passing the impugned orders whose details have already been stated above. 44. Under the provisions of section 11B the right to claim refund was conferred not only to the assessee but also to such classes of applicants as notified by the central government and also covers situations arising out of judgements of courts and tribunals. On the appointed date there could be claims of refund of any amount of CENVAT Credit, duty, tax, interest or any other amount paid under the existing law in connection with which the applications for refunds were pending or time limit for claiming refund was yet to ....
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....und of the same tax amount. 48. Section 140(5) applies under the circumstances where input services are received after the appointed day but the tax has been paid by the supplier under the existing law within the time and in the manner prescribed with a further condition that the invoice etc are recorded in the books of account of the such person within a period of 30 days from the appointed day. Section 140(5) also does not help the petitioner. Section 140 (5) has no applicability to the facts and circumstances of this case. In the instant case, admittedly the services in the nature of "port services" were received by the petitioner in the month of April 2017 and invoice was also generated in the month of May 2017. 49. In the peculiar facts of this case, the petitioner did not claim transitional credit but claimed the impugned amount of service tax on "port services" as credit in their ST-3 return which they were admittedly not entitled as they were assessee under service tax only on reverse charge mechanism and admittedly the "port services" availed by the petitioner was not covered under reverse charge mechanism. Thus, the petitioner on the one hand illegally t....
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....s was done only attempting to save their credit which they had failed to claim through ER-1 return and then as transitional credit through TRAN-1 under section 140(1) of the CGST Act. Thus, the authority has rightly held that petitioner had wrongly claimed Credit of the impugned service tax under ST-3 return and omitted to claim the impugned service tax as CENVAT Credit in ER-1 Return. 52. Further case of the respondent is that the petitioner as a manufacturer was eligible to claim CENVAT Credit on impugned service i.e "port services" and should have claimed the credit in their ER-1 Return within the prescribed time and accordingly could have claimed transitional credit through TRAN-1 under section 140 of CGST, Act. Thus, late receipt of the original invoice which has been cited as the reason for failure to claim CENVAT Credit under the existing law and transitional credit under section 140(1) of the CGST, Act was wholly attributable to acts and omissions of the petitioner and its service provider of the "port services" and the respondent authorities had no role to play. The petitioner had failed to avail the opportunity to claim CENVAT Credit of service tax on port servic....
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....it has also been held in the impugned orders that the petitioner not only failed to claim the CENVAT Credit as per law, but illegally claimed the credit of the same while filing service tax return although the petitioner was not entitled to do so as the petitioner was not registered as a service provider. The authorities have also held that the service tax paid on port service was not eligible for refund under the existing law as the said services were not utilised for export. Thus, the petitioner on the one hand did not claim CENVAT Credit as per the procedure established by law under the existing law and on the other hand violated the provisions of law while filing his service tax returns and claimed the amount as input service and thereafter filed his petition for refund on 28.06.2018 referring to Section 142(3) of the CGST Act. The petitioner never had a right to claim refund under the existing law and had failed to exercise their right to claim CENVAT Credit as per law and wrongly claimed the impugned amount as credit in Service Tax Return (S.T. 3 return)." 4.8 From the above referred decision of Hon'ble high Court of Jharkhand, which has been rendered in identical situatio....
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....ot supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment: (ii) Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person's case; this is the ratio of the opinion of Hidayatullah, CJ. in Tilokchand Motichand and we respectfully agree with it." Appellant has never obtained any decision in his case and the assessment/ payment of duty by the appellant thus became final. In case of ITC Ltd. [2019....
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....g for the refund which, if we may term it so, is in the nature of execution of a decree/order. In the case at hand, it was specifically mentioned in the order of the Assistant Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised." (emphasis supplied) 40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (SC)= (2005) 10 SCC 433 = 2004-TIOL-78-SC-CUS, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus: "6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650 = 2002-TIOL-208-SC-CX. Once an order of assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal, that order stands. So long as the order of assessment stands the duty would be payable as per that or....
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....ng, modifying or anunulling the decision or order appealed against or may refer the case back to the authority which [passed such decision or order with such directions as the Appellate Tribunal may think fit' for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." From the perusal of the above Section it is quite evident that the appellate tribunal cannot allow any ground which would have amounted to a fresh refund claim while deciding the appeal. In the case of Life Insurance Corporation Of India [Order dated 01.09.2022 in Civil Appeal No. 5909 OF 2022] Hon'ble Supreme Court observed as follows: "25. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defense which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favor of the plaintiff is not withdrawn.....
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....hiVihar, Division Moradabad Respected Sir, 1. 2. 3. 4. 5. Lac Fifty Three Only), relatable to We claim refund of Rs 6,53,724/- (Rs Six Thousand Seven Hundred Twenty Four amount paid by us under RCM on service of transportation of goods provided by foreign shipping line, in terms of Notification no 3/2017- ST dated 12.01.2017 read with CBEC Circular number 206/4/2017 Service Tax dated 13-04-2017. A copy of the notification and the circular is enclosed as Annexure-1. Page 4 to 6 We company M/s Swati menthol and Allied Chemicals Limited having Service Tax Registration number AAECS0319MSD002 are engaged in receiving of Taxable services. The audit of the factory of the unit has been conducted by the Audit Team from 20.11.2017 22.11.2017, During the course of audit an amount of service tax Rs. 6,53,724/- was demanded by the audit team along with interest of Rs 84,477/- plus penalty of Rs. 98,059/- which the applicant paid vide challan no 037 dated 11.01.2018. The amount was paid by us in terms of in terms of Notification no 3/2017-ST dated 12.01.2017 read with CBEC Circular number 206/4/....