TaxTMI 
TaxTMI 
2024 (11) TMI 990
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....s etc are issued from place outside the jurisdiction of the Deputy Commissioner; * The agreement between the service provider and appellant which is very crucial to the subject transaction stipulates that the same is immune from the jurisdiction of Indian courts. Only the court of England and Wales have the jurisdiction over any dispute to the agreement; * The Service Tax has not been paid by the appellant but by the service provider at Service Tax - 1 Kolkata Commissionerate; * Thus, there was no payment of service tax done under the jurisdiction of the Deputy Commissioner into the account of Service Tax Mumbai - VII Commissionerate; * The relevant notifications and section 103 of the Finance Act and legal provisions governing the refund matter talks about the service provider only indicating clearly that not the service recipient, but the service provider may be allowed to claim refund. The appellant was not a service provider but service recipient. 2.1 The Appellants is engaged in providing taxable services and are registered with the Service Tax authorities for the same. 2.2 They had entered into an agreement with M/s ITD Cementation for construction work at Nhava She....
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.... Miscellaneous Early Hearing Application in the matter, which was considered and allowed by the bench vide Miscellaneous Order No M/85022/2021 dated 27.01.2021 3.1 We have heard Shri Parsad Paranjape, Advocate for the Appellant and Shri Nitin M Tagade, Joint Commissioner, Authorized Representative for the revenue. 3.2 Arguing for the appellants learned Counsel made submissions in support of the appellants claim for the refund, which he summarized in the written submissions dated 1st February 2021, 16th March 2021 and 3rd May 2021. Submissions dated 1st February 2021 * Section 103 of the Act which authorised the Appellant to file the refund claim. It does not mandate filing of the refund only in the jurisdiction of the service provider. * Commissioner (Appeals) has held that the recipient of service is eligible to file the refund claim. As natural corollary it is but obvious that the said claim need not be filed within the jurisdiction of the service provider, especially in the absence of any mandate in law. * Section 11B of the Central Excise Act 1944 read with Section 83 of the Act governs the refund claims filed by an assessee. Section 11B(1) mandates that any person cl....
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....istered assessee with the department. Thus, reliance on the said instructions does not support Revenue's case. * Without prejudice to the above submission that the Appellant is entitled to file the refund claim in their own jurisdiction and even assuming without admitting that the lower authorities are right in holding that the refund claim ought to have been filed within the jurisdiction of the service provider, the appropriate approach for the lower authorities was to transfer the refund application with the concerned jurisdictional officer instead of returning the same to the Appellant. * Section 14 of the Limitation Act 1963, that in computing the period of limitation, time during which the claim was pursued before the officer with defect of jurisdiction should be excluded. This view has been upheld by the following decisions o Anurag Enterprises [ 2019 (369) ELT 1617 (Tri. - All.)] o Symbio Generics [2019 (369) ELT 972 (Tri.-Chennai)] o Welspun Tradings Ltd. [ 2018 (363) ELT 710 (Tri. - Ahmd.)] o Sahara Power Products [2015 (40) STR 536 (Tri. - Bang.)] Submissions dated 16th March 2021 * It is submitted that the Appellant had filed the impugned refund applicati....
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....of annulling the earlier assessment and mandating compulsory refund subject to certain conditions. * It is further stated that the present refund application is filed by the Appellant in the capacity of a recipient of service, as recipient of service he is not in position to challenge the assessment made by the service provider while filing his returns. * Section 103 of the Finance Act,1944 was enacted with effect from 14.05.2016, whereas, the present refund application pertains to the period April 2015 to February 2016. If the person seeking refund should have sought modification of assessment order, the period for doing so i.e. filing appeal, would have been over for substantial part of the disputed period. Thus, the interpretation leading to expect performance of impossible has to be discarded. * The lower authorities have not rejected the refund on the ground that assessment was not challenged. The lower authorities never applied ratio of the decisions in case of Flock India and Priya Blue to reject the refund claim filed by the Appellant. * Appellant first filed their refund application before the Deputy Commissioner in charge of their own jurisdiction, the same was re....
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....prescribed jurisdictional officers. The jurisdictional offices can, based on the ST-3 returns, verify whether any excess Tax/Duty payment was made, and to what extent. * In case of M/s ITC Ltd [2019 (368) ELT 216 (SC)] Hon'ble Supreme Court has held that refund application is not maintainable in the case where the duty has been paid as per the assessment order (including self-assessment) which has not been challenged by way of an appeal before the appropriate authority, stating as follows: "41. It is apparent from provisions of refund that it is more or less in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise. ....................... 47. ............ we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or selfassessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of selfassessment and reassess the duty for making refund; and in case any person is aggrieved by any or....
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....case laws cited by the appellant. Commissioner (Appeals) as observed that,- o in the case of Jindal Steel & Power Ltd Vs Commissioner referred to in the decision of Chambal Fertilisers &Chemicals Ltd Vs Commissioner of Central Excise, the reason for the findings was that the refund claim was rejected by both the authorities citing jurisdiction. In the case in hand, the claim was not rejected on merits but returned to the appellant for filing before/with appropriate authority, o in the case of Commissioner of Central Excise Pune - I Vs Fujitsu Consulting Pvt Ltd, the issue was rejection of refund because the invoice was addressed to their New Delhi office. The refund application was filed in Pune and duty was also paid in Pune. As such, the ratio of the decision is distinguishable from the case in hand, o in the case of Devasthan Vibhag Vs Commissioner of Central Excise, there was no dispute to the eligibility of refund. The issue was only pertaining to the jurisdiction. Further, appellant had procured a letter from the Additional Accounts Officer observing that the refund is payable to them. In the case on hand, the eligibility of the refund was not decided by the adjudicating ....
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....ppellants, was challenged by the appellants before the Commissioner (Appeal). Considering this letter to be an appealable order, Commissioner (Appeal) admitted the appeal and after hearing the Appellants, he decided the appeal as per the impugned order. By the impugned order, Commissioner (Appeal) agreed with the contentions made by the appellant, vis a vis their eligibility to file this refund claim as recipient of services, but disagreed on the ground of the jurisdiction of the Deputy Commissioner Division 9 Service Tax VII before whom the Appellants have filed the refund claim. In result he dismissed the Appeal filed by the Appellant. 4.4 Revenue has not filed any appeal, or cross objections in the matter challenging that part of the order, which has been decided by the Commissioner (Appeal) in favor of the appellant, i.e., their eligibility to file this refund claim. In absence of any appeal or cross objections filed by the revenue challenging this part of the order, we have no hesitation in agreeing with the submissions made by the counsel for appellant that this cannot be questioned at this stage, while deciding their appeal. Hence without going in that issue, we are proceed....
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....ths from the date on which the Finance Bill, 2016 receives the assent of the President." This section exempts certain specified services during the period 1st April 2015 to 29th February 2016, subject to fulfilment of certain conditions. It also provides for the refund of the Service Tax, which had been paid on these services during this period, provided the application for the refund of the same is made within six months from the date on which Finance Bill, 2016 received the assent of the President. This section has been considered by the Hon'ble Gujarat High Court, Hon'ble Bombay High Court and the Hon'ble High Court of Madhya Pradesh in the decisions referred here under. Essar Bulk Terminal Salaya Ltd [2018 (363) ELT 262 (T-Ahd)] affirmed in [2019 (25) GSTL 521 (Guj)] [6.2] It is required to be noted that as such the service in question was subjected to service tax for the period between 01.04.2015 to 29.02.2016 and therefore, the service tax was allowable to be paid during the aforesaid period and in fact the petitioner paid the same which was reimbursed by the petitioner to the service provider. However, by Finance Bill, 2016, section 103 came to be inserted in Finance ....
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....1 (Bom)] "12. If we analyze Section 103 of the Finance Act, 1994, we may notice that sub­section (1) provides that notwithstanding anything contained in Section 66B, no service tax shall be levied or collected during the period from 01.04.2015 to 29.02.2016 in respect of services provided by way of construction, erection, commissioning or installation of original works pertaining to an airport or port under a contract which has been entered into before 01.03.2015. The condition imposed in sub­section (1) of Section 103 of the Act is that the Ministry of Civil Aviation or as the case may be, Ministry of Shipping, certifies that the contract had been entered into before 01.03.2015. Sub­section (1) of Section 103 thus, while granting exemption from payment of service tax for the past period in respect of contracts which were entered prior to 01.03.2015, made it conditional that the certificate being issued by the concerned Ministry that the contract for such service had been entered before 01.03.2015. 13. Sub­section (2) of Section 103 pertains to refund to be granted of the service tax already paid. It provides that the refund shall be made of all such service t....
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....ted by the Hon'ble High Courts as is evident from these decisions. 4.7 The jurisdiction to process the refund claim filed under Finance Act, 1994, needs to be determined in terms of Section 83 of Finance Act, 1994 read with Section 11B and 12 E of Central Excise Act, 1944 and Rule 3 of the Service Tax Rules, 1994 read with Rule 3 of Central Excise Rules, 2002. These provisions are reproduced below: Central Excise Act, 1944 Section 2. Definitions. - In this Act, unless there is anything repugnant in the subject or context, - .......... (b) "Central Excise Officer" means the Principal Chief Commissioner of Central Excise, Chief Commissioner of Central Excise, Principal Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, Joint Commissioner of Central Excise Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) wi....
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....nder. (3) Any Central Excise Officer may exercise the powers and discharge the duties conferred or imposed by or under the Act or these rules on any other Central Excise Officer who is subordinate to him. Finance Act, 1994 Section 65B. Interpretations. - In this Chapter, unless the context otherwise requires,- (55) words and expressions used but not defined in this Chapter and defined in the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise. SECTION 83. Application of certain provisions of Act 1 of 1944.- The provisions of the following sections of the Central Excise Act, 1944, as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise :- sub-section (2A) of section 5A, sub-section(2) of section 9A, 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, 12E, 14, 15, 15A, 15B, 31, 32, 32A to 32P, 33A, 35EE, 34A, 35F, 35FF, to 35O (both inclusive), 35Q, 35R, 36, 36A, 36B, 37A, 37B, 37C, 37D, 38A and 40. Service Tax Rules, 1994 3. Appointment of officers - The Cent....
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.... particular person or thing. On the other hand, 'the' is called the Definite Article because it points out and refers to a particular person or thing. There is no doubt that, if Parliament intended that any proper officer could have exercised power under Section 28 (4), it could have used the word 'any'. 11. Parliament has employed the article "the" not accidently but with the intention to designate the proper officer who had assessed the goods at the time of clearance. It must be clarified that the proper officer need not be the very officer who cleared the goods but may be his successor in office or any other officer authorized to exercise the powers within the same office. In this case, anyone authorized from the Appraisal Group. Assessment is a term which includes determination of the dutiability of any goods and the amount of duty payable with reference to, inter alia, exemption or concession of customs duty vide Section 2 (2) (c) of the Customs Act, 19624 . 12. The nature of the power to recover the duty, not paid or short paid after the goods have been assessed and cleared for import, is broadly a power to review the earlier decision of assessment. Such a power is not ....
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....1B, in relation to determine the jurisdiction in which the refund claim should have been filed. Relevant part of Section 11 B of Central Excise Act, 1944, which has been made applicable by the Section 83 of Finance Act, 1994, for the refunds in case of Service Tax is reproduced below: 4.10 From the perusal of both sub section 1 and sub section 2 of Section 11 B, it is evident that the phrase "Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise", is preceded by the definite article "the" and not the indefinite articles "a or an". Referring to the use of definite article, in para 11 and subsequent paras, Hon'ble Apex Court has concluded that the powers vested under Section 28 (4) for re-assessment were to be exercise by the same officer or his successor in office, who had earlier exercised the power of assessment and by no one else. On the same logic we have no hesitation in holding that the phrase "Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise" used in Section 11 B, also refers to the jurisdictional "Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise", with whom the ST-3 returns, in res....
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....e under, namely :- 4.13 Also a notification assigning the territorial jurisdiction in terms of clause (b) of section 2 of the Central Excise Act, 1944 (1 of 1944), read with clause (55) of section 65B of the Finance Act 1994 (32 of 1994), rule 3 of the Central Excise Rule, 2002 and rule 3 of the Service Tax Rules, 1994, has been issued by the Central Board of Excise and Customs. The preamble to the said notification is reproduced below: [TO BE PUBLISHED IN THE GAZETTE OF INDIA EXTRAORDINARY, PART II, SECTION 3, SUB-SECTION (i)] GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL BOARD OF EXCISE AND CUSTOMS NOTIFICATION No. 20/2014-SERVICE TAX New Delhi, the 16th September, 2014 25 Bhadrapada, 1936 Saka G.S.R (E).- In exercise of the powers conferred by clause (b) of section 2 of the Central Excise Act, 1944 (1 of 1944), read with clause (55) of section 65B of the Finance Act 1994 (32 of 1994), rule 3 of the Central Excise Rule, 2002 and rule 3 of the Service Tax Rules, 1994, the Central Board of Excise and Customs hereby- (a) appoints, Chief Commissioners of Service Tax, Principal Commissioners of Service Tax, Commissioners of Service Tax, Co....
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....Assistant or Deputy Commission er of Central Excise Maharashtra Receiving of the refund claims filed by diplomatic missions or consulates or diplomatic agents or career consular officers under section 11B of the Act 3 Joint Secretary (Protocol), Government of West Bengal Assistant or Deputy Commission er of Central Excise West Bengal Receiving of the refund claims filed by diplomatic missions or consulates or diplomatic agents or career consular officers under section 11B of the Act 4 Joint Secretary (Protocol), Government of Tamil Nadu Assistant or Deputy Commission er of Central Excise Tamil Nadu Receiving of the refund claims filed by diplomatic missions or consulates or diplomatic agents or career consular officers under section 11B of the Act 4.15 From the reading of the above referred provisions of the Acts and Rules and notifications issued thereunder it is quite evident that Central Excise Act, 1944 and Chapter V of Finance Act, 1994 are implemented by specified officers on whom the territorial cum functional jurisdiction, exercise the powers conferred under these statues has been specified. Accordingly Central Board of Excise and Custom (as it was k....
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....f the mistake of law and, therefore, he is entitled to refund of the duty paid by him? Can he invoke Section 72 of the Contract Act in such a case and claim refund and whether in such a case, it can be held that reading Section 72 of the Contract Act along with Section 17(1)(c) of the Limitation Act, 1963, the period of limitation for making such a claim for refund, whether by way of a suit or by way of a writ petition, is three years from the date of discovery of such mistake of law? Kanhaiyalal is understood as saying that such a course is permissible. Later decisions commencing from Bhailal Bhai have held that the period of limitation in such cases is three years from the date of discovery of the mistake of law. With the greatest respect to the learned Judges who said so, we find ourselves unable to agree with the said proposition. Acceptance of the said proposition would do violence to several well-accepted concepts of law. One of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. Where a duty has been collected under a particular order which has become final, the refund o....
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....e 11 and Section 11B, in particular, provide for refund of taxes which have been collected contrary to law, i.e., on account of a mis-interpretation or mis-construction of a provision of law, rule, notification or regulation. The Act provides for both the situations represented by Sections 11A and 11B. As held by a seven - Judge Bench in Kamala Mills, following the principles enunciated in Firm & Illuri Subbaiya Chetty, the words "any assessment made under this Act" are wide enough to cover all assessments made by the appropriate authorities under the Act whether the assessments are correct or not and that the words "an assessment made" cannot mean an assessment properly and correctly made. It was also pointed out in the said decision that the provisions of the Bombay Sales Tax Act clearly indicate that all questions pertaining to the liability of the dealer to pay assessment in respect of their transactions are expressly left to be decided by the appropriate authorities under the Act as matters falling within their jurisdiction. Whether or not a return is correct and whether a transaction is exigible to tax or not are all matters to be determined by the authorities under the Act. ....
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....ave of refund claims all over the country in respect of matters which have become final and are closed long number of years ago. We are not shown that such a thing is happening anywhere else in the world. Article 265 surely could not have been meant to provide for this. We are, therefore, of the clear and considered opinion that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee's case. All claims for refund ought to be, and ought to have been, filed only under and in accordance with Rule 11/Section 11B and under no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favor just because in another assessee's case, a similar point is decided in favor of the manufacturer/assessee. (See the pertinent observations of Hidayatullah, CJ. in Tilokchand Motichand extracted in Para 37). The decisions of this Court saying to the contrary must be held to have been decided wrongly and ....
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.... order or direction of the appellate authority, Appellate Tribunal or any Court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction. It is provided in Section 27(1B)(c) that where any duty is paid provisionally under Section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in the case of re-assessment, from the date of such re-assessment. The second proviso to section 27 makes it clear that limitation of 1 year shall not apply where any duty or interest has been paid under protest. 37. Under Section 27(2)(a) it is incumbent upon the applicant to satisfy that the amount of duty or interest of which refund has been claimed, had not been passed by him to any other person, the provision aims at preventing unjust enrichment. 38. No doubt about it that the expression which was earlier used in Section 27(1)(i) that "in pursuance of an order of assessment" has been deleted from the amended provision of Section 27 due to introduction of provision as to selfassessment. However, as self-assessment is nonetheless an order of assessment, no difference is made by d....
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....order is not liable to be questioned and the matter is not to be reopened in a proceeding 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), 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 du....
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....) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression 'Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of reassessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pas....
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....8 (12) STR 545 (Raj.). In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act. 46. The decision in Intex Technologies (India) Ltd. v. Union of India has followed Micromax (supra). The reasoning employed by the High Courts of Delhi and Madras does not appear to be sound. The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128. 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of selfassessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act." 4.18 Appellants have....
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....e or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). 4.7 As per the plain reading of the above section 85(1), it provides for filing an appeal before the Commissioner (Appeals) only in case an order is passed by an officer below the rank of Principal Commissioner or Commissioner of Central Excise. In the case of self assessment of Service Tax, there is no order of assessment passed by any officer below the rank of Principal Commissioner or Commissioner of Central Excise. Therefore, there is no provision corresponding to section 47(2) of Customs Act, 1962 in the Finance Act, 1994. Therefore, there is a clear distinction between the assessment under Customs and Service tax. Therefore, ratio of ITC Ltd. case cannot be applied in the matter of Service Tax. We have also noticed that Hon'ble Supreme Court in the ITC case also considered the case of Central Excise duty where the assessments were provisional. In that case, final assessment order was also passed. The assessee paid the amount so demanded. The assessee not being aware of the particular benefit of notification at the time of finalisation of assessment does not claim it. He did not ....
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....cerned authority in Form ST-4, which requires to disclose, designation and address of the officer passing the decision or order appealed against, and the date of decision or order, so also the date of communication of the decision or order appealed against to the appellant. Admittedly, when no order capable of being appealed against, had ever been passed, it cannot be said that the assessee could file appeal against the assessment order, and not having so filed appeal he cannot lay the claim of refund. Thus, the order of the Tribunal cannot sustain." What has been stated in para 45, by the Hon'ble Apex Court in case of ITC Ltd., is nothing but the rejection of the above reasoning adopted by the High Court in the cases of Service Tax, which admittedly are not the cases under the Customs Act, 1962. The natural implication of the said observation is extension of the reasoning adopted by the Hon'ble Apex Court to the matters beyond the cases under Customs Act, 1962, specifically under Chapter V of Finance Act, 1994. 4.20 In para 47, Hon'ble Apex Court disagrees with the reasoning adopted by the Delhi High Court in case of Micromax [2016-TIOL-978- HC-Cus], which is also reproduced as....
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....on 11B to process the refund claims filed by any person, in respect of those return. 4.22 In a series of decisions various courts and tribunal have held that, while examining the admissibility of CENVAT Credit to the recipient of services/ purchaser of goods, the officer so examining cannot question the assessment made at the time of provision of services or the sale of goods. Some of the decisions are as follows: * Kerala State Electronics Corporation [1996 (14) RLT 129 (T)] * MDS Switchgear [2008 (229) ELT 485 (SC)] * Ajinkya Enterprises [2012-TIOL-578-HC-MUM-CX] In case of Ajinkya Enterprises, Hon'ble Bombay High Court stated the principle of law as follow: "10. Apart from the above, in the present case, the assessment on decoiled HR / CR coils cleared from the factory of the assessee on payment of duty has neither been reversed nor it is held that the assessee is entitled to refund of duty paid at the time of clearing the decoiled HR / CR coils. In these circumstances, the CESTAT following its decision in the case of Ashok Enterprises 2008( 221) ELT 586 (T), Super Forgings 2007 (217) ELT 559 (T), S.A.I.L. 2007 (220) ELT 520 (T), M.P. Telelinks Limited 2004 (178) ELT 1....
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....otification granting exemption. In Novopan Indian Ltd. (supra), this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave (1996) 2 SCR 253, held that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption. 23. Of course, some of the provisions of an exemption notification may be directory in nature and some are of mandatory in nature. A distinction between provisions of statute which are of substantive character and were built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must ....
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.... requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non- compliance of directory requirements. In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty. The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive noncompliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to ....
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....ious statutory forms prescribed under Chapter X, in our view, are fatal to a plea of substantial compliance and intended use. The respondents, therefore, on the facts of this case, have not succeeded in establishing the plea of "intended use" or "the substantial compliance" of the procedure set out in Chapter X so as to claim the benefit of the exemption notification dated 11.8.1994." 4.25 Admittedly during the period 1st day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), the Service Provider who had paid the Service Tax in respect of the services, which were subsequently exempted as per the inserted Section 103 of the Finance Act, 1994, would be operating under the CENVAT Credit Scheme as per the CENVAT Credit Rules, 2004. Since these services have been subsequently exempted as per Section 103, the service provider could claim the benefit of this exemption only on complying with Rule 6 of the CENVAT Credit Rules, 2004, which lays down the procedure to be followed by the person providing both taxable and exempted services. To put it in simpler words, even if the services were exempted during the material period in normal manner and not by leg....
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....that any person who is claiming refund of any amount paid by him as duty/ tax or interest thereon is required to file the refund claim with "the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise". The issue for consideration is whether the manner in which this section exists will permit the claimant to file the refund claim with any Assistant/ Deputy Commissioner of Central Excise or the claim is to be filed before the specific and specified Assistant/ Deputy Commissioner of Central Excise. Appellant has relying upon certain judgements argued that they are justified in filing this refund claim as service recipient before the Assistant/ Deputy Commissioner of Central Excise, in the jurisdiction which they are registered, even if they are claiming the refund of amount paid by the service provider registered in jurisdiction elsewhere. They rely on the decision of Tribunal in the case of Chambal Fertilizers wherein the tribunal has observed "6. There is no provision exist in Section 11B ibid, limiting the filing of refund claim either in Commissionerate having jurisdiction over service provider or that having jurisdiction over service recipient. In such ....
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....on the singular ground that the refund claim was filed by the recipient of the service and not the provider M/s RGTIL; and that the word 'any person" in Section 11B of the 1944 Act does not include the recipient of a service, on whom the burden of remittance of service tax does not fall under the provisions of the Act. The decision of the Supreme Court in Mafatlal Industries Ltd. vs. Union of India - 1997 (89) ELT 247 (SC), relied upon by the appellant to support its claim for refund was brushed aside by the appellate authority by simply observing that the facts and circumstances of the Mafatlal case were different from the facts and circumstances presented by the appellant. 6. The Constitution Bench in Mafatlal Industries at paragraph 90 and in the summary of its conclusions in paragraph 99 (xii) clearly spelt out the scope of Section 11B of the 1944 Act and ruled that Section 11B does provide for a purchaser presenting a claim for refund, provided he is able to establish that he has not passed on the burden to another person. In VST Precision Components Ltd. vs. CCE, Bangalore-II - 2003 (157) ELT 493 (Tri. Bang.), this Tribunal referred to the decision of Ferrous Engineeri....
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....the Commissioner, Central Excise, Raipur and had engaged M/s Gannon Dunkerly and Co. Limited to execute works relating to construction of a bridge over a railway line for providing access to the appellant's factory premises. During 17.05.2011 to 12.08.2011 the service provider M/s Gannon Dunkerly & Co. Limited had remitted service tax on the basis that it had provided the taxable Commercial or Industrial Construction Service and charged the amount of service tax to the appellant. The appellant, after realising that the definition of Commercial or Industrial Construction Service excludes construction of a bridge, filed the refund claim on 21.03.2012 before the Deputy Commissioner, Service Tax Division-II, Delhi claiming a refund of Rs.4,26,305/-, constituting the service tax remitted by the appellant towards the non-taxable service of construction of a bridge, provided by M/s Gannon Dunkerly & Co. Limited. On 20.04.2012, the Deputy Commissioner, Delhi returned the refund claim on the ground that the appellant was not within his jurisdiction and therefore he had no power to grant refund. The assessee/appellant again represented to the Deputy Commissioner, Delhi for granting refun....
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....had initially filed a claim before the Delhi Commissionerate which rejected the same on the ground that it had no jurisdiction since the appellant was pursuing business outside its jurisdiction. The Bilaspur Commissionerate also rejected the refund claim on the ground that the provider of the service is not within its jurisdiction. The rejection by both Commissionerates is in my view unsustainable." 4.29 Without analyzing the provisions of the Acts and Rules, the tribunal in case of Jindal Steel & Power, supra, did not decide the issue of jurisdiction but holds that the service recipient is entitled to file the refund claim in both the jurisdictions, i.e. before the Assistant Commissioner where service provider is registered or before the Assistant Commissioner where he is registered. This decision has been followed by the tribunal in the case of Chambal Fertilizers and Chemicals Ltd, relied upon by the Appellants before us. The approach of the tribunal in case of Jindal Power and Steel, that service recipient is entitled to file the refund claim, either before the Assistant/Deputy Commissioner in jurisdiction where he is registered or before the Assistant/ Deputy Commissioner of....
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....not be a ground for holding that the provisions introduced by the 1991 (Amendment) Act are a "device" or a "ruse" to retain the taxes collected illegally and to invalidate them on that ground - assuming that such an argument is permissible in the case of a taxing enactment made by Parliament. (See R.K. Garg and other decisions cited in Paras 78 and 79)." From the perusal of this paragraph it is quite evident that while Hon'ble Apex Court has held that purchaser of goods too can file the refund claim, but holds that the refund claim needs to be filed in the jurisdiction from where the goods were cleared on payment of duty. 4.30 In case of Chambal Fertilizers and Chemicals Ltd [2018 (15) GSTL 576 (Raj)]], Hon'ble Rajasthan High Court stated the law as follows: "9. In our considered opinion, it is always better to allow the assessee to claim from his jurisdictional Commissioner since it is very easy to claim the same and it is settled preposition that the person who paid the amount to an authority, must claim the refund from the same authority. 10. In that view of the matter, we are in complete agreement with the view taken by the Tribunal. 11. For the jurisdiction, we are ....
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....uty concession. Where such a claim succeeds, the refundable amount becomes payable to the manufacturer and the duty paying documents are thereafter suitably corrected to reflect the actual amount in the credit of the Govt., after offsetting the refunded amount. Therefore, it is obvious that in terms of the aforesaid position only the 'refinery' can seek refund and not the "appellants" who are the purchasers of naptha and the so called "excess duty" paid by them to the suppliers is not an excise duty a part of the price, paid to the seller. Further, such a claim must be lodged with the Assistant Commissioner of Central Excise, having jurisdiction over the refinery and not with the Assistant Commissioner having jurisdiction over appellant's factory. As the reading of the entire text of Section 11B reveals, it is the Assistant Commissioner in charge of the refinery alone, who not only can determine the computation of refundable amount, but also other eligibility parameters such as acceptance of duty paying documents, limitation, unjust enrichment etc. with reference to the duty paid by the refinery. 7. As mentioned at the outset, the appellants are claiming the refund a....
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....r had no jurisdiction. The aforesaid reason given by the CESTAT is factually incorrect. We find that the purchases were from depot at Rajbandh under the IOCL refinery at Durgapur and therefore, the Central Excise authorities at Durgapur had the requisite jurisdiction over IOCL Depot located at Rajbandh, as it comes under Durgapur Commissionerate." 4.32 In respect of Section 103 of the Finance Act, 1994 as inserted by Finance Act, 2016, we have earlier referred to the decisions of Hon'ble Bombay High Court and Hon'ble Gujarat High Court, that this section provides for the conditional exemption in respect of the specified services, retrospectively for the specified period. Service provider has in the jurisdiction where he is registered appropriately paid the Service Tax due on these services. By not claiming the refund as per the by availing the exemption as per Section 103, Service Provider continues to avail the other benefits as admissible in law. On the other hand if the service recipient claims the refund as per section 103, in a jurisdiction elsewhere other than that of the service provider and such refund claim is allowed in that jurisdiction, then will it not amount to doub....
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.... or to transfer the same to the correct Commissionerate. In any case, the appellate authority set aside the order instead of remanding the matter to be re-adjudicated by the proper officer." In this decision, the bench has held if the officer with whom the refund claim was filed was not having the jurisdiction to decide upon the refund claim then instead of processing the same, he should have either transferred the same to the officer having the jurisdiction or should have returned back the paper to the claimant for proper filing. In the case before us Deputy Commissioner has returned back the papers to the Appellant for filing before the appropriate authority. 4.34 In view of the discussions as above, the Assistant/ Deputy Commissioner Division-9, Service Tax - VII, Mumbai is not having jurisdiction either under sub-section 1 or sub-section 2 of Section 11 B (1) of Central Excise Act, 1944 read with section 83 of the Finance Act, 1994, either to receive or adjudicate upon the refund claim in respect of the Service Tax payments made in the jurisdiction of Kolkata Commissionerate, even in respect of the service recipient registered in his jurisdiction. 4.35 In para 4.14, supra w....
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.... them we do pronounce on this issue, except for observing that Hon'ble Supreme Court has in case of Mafatlal Industries, specifically ruled out the application of Limitation Act to the matters of refund under Central Excise Act, 1944 and Customs Act 1962 holding as follows: "(i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter - by mis-interpreting or mis-applying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by mis-interpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactment before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provis....
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....ng refund in terms of Clause 2 of Section 103 of the amended Finance Act, 2016 which starts with a very assertive wordings that reads: "Refund shall be made of all such Service Tax which has been collected but which would not have so collected had Sub-Section 1 being in force at all material times." The implication of this Section is that refund has to be made since it was not a Service Tax that was supposed to be collected. Therefore, the jurisdictional officer has got no discretion to refuse a refund if application for claim of refund of Service Tax would be made within a period of six months from the enforcement of Finance Bill, 2016 in view of its Clause 3. This is the broad outline set by the Legislature in which the competent authorities are required to operate. 7. Appellant is a service receiver at Mumbai from whom service provider of Kolkata had collected Service Tax and paid it at his territorial jurisdiction at Kolkata. The refund claim is filed by the appellant before its Service Tax Authority namely the Deputy Commissioner, Division-9, Service Tax-VII, Mumbai who returned the claim filed by the appellant with his observation on the issue of jurisdiction and on the m....
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....laint to the plaintiff and direct him to present the same to the court in which it should have been instituted. This is an appealable order as per Rule 10B where the Appellate Court is empowered to transfer the case to the proper court and in such circumstances the provisions of Limitation Act, 1963 would be applicable. Learned Commissioner (Appeals), though in his subconscious mind has taken recourse to order 7 Rule 10B of CPC, has not preferred to transfer the refund claim application to Kolkata after observing that his Deputy Commissioner lacks jurisdiction to entertain the refund claim, in which case, in applying the ratio of the decision passed in M.P. Steel Corporation Vs. Central Excise by the Hon'ble Supreme Court on 23.04.2014, would have extended the benefit of Section 14 of the Limitation Act, since it was apparent on the face of record that appellant was prosecuting proceedings diligently and in a bonafide manner, though to his opinion, in a wrong forum in order to honour the supremacy of Parliament in complying Sub-Section 2 of Section 103 of Finance Act, 2016 that refund shall be made. 9. Be that as it may, even otherwise also Commissioner (Appeals) has erred in ....
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.... in no way revered the findings of this Tribunal that the service recipient had the option to file the refund claim either with the Assistant Commissioner in the jurisdiction where service receiver is registered or with the Assistant Commissioner in the jurisdiction where service provider is registered. Hence, in caring forward the judicial precedent set by this Tribunal, to my considered view, a finding can be placed in the appellate order of this Tribunal that appellant is entitled to get the refund claim at Mumbai and therefore the order passed by the Commissioner (Appeals) is required to be set aside. Dr. Suvendu Kumar Pati Member (Judicial) Points of Difference In view of the difference of opinion between learned Member (Technical) and learned Member (Judicial) on the findings pertaining to jurisdiction of Mumbai Service Tax authority or Kolkata Service Tax authority to deal with the refund application of the appellant, filed in terms of Section 103 of the Finance Act, 1994, the Registry is directed to place the matter before the Hon'ble President, in accordance with Section 129C(5) of the Customs Act, for resolution of the following points of difference:- 1. Wh....
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....ective restoration of the exemption been in force, during all material times, shall be refunded. The appellants having suffered the service tax charged and collected by M/s. ITD, had filed a refund application on 27.10.2016 with their jurisdictional Deputy Commissioner, claiming refund of service tax amounting to Rs. 6,06,92,391/- paid by them during the period from 01.04.2015 to 29.02.2016. 11.2 The refund application was returned by the jurisdictional Deputy Commissioner, Division-IX, Service Tax Commissionerate-VII, Mumbai to the appellants under the cover of his letter dated 08.12.2016. In support of returning the refund application, the Deputy Commissioner has assigned the reason that the service tax has not been paid by the appellants into the account of Service Tax-VII Commissionerate, but the same has been paid by the service provider at Service Tax, Kolkata Commissionerate; that the relevant notifications and Section 103 ibid mandates that the 'service provider' is allowed to claim the benefit of refund and not the 'recipient of service'. Against the said communication of the original authority, the appellants have preferred appeal before the learned Commissioner (Appeals....
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.... could have assessed the returns filed by the assessee initially is empowered to process the refund claims filed by any person, in respect of those returns. Without questioning/modifying the selfassessment made by the service provider in Kolkata, no refund can be made to any person even if admissible under Section 103 of the Finance Act. Since the services have been subsequently exempted as per Section 103, the service provider could claim the benefit of this exemption only on complying with Rule 6 of the CENVAT Credit Rules, 2004 [Para 4.22 to 4.26, pages 38 to 44] In terms of Section 103 of the Finance Act, the jurisdictional officer has no discretion to refuse a refund if the application is made within a period of six months from the enforcement of the Finance Bill, 2016, in view of its clause 3. [Para 6, page 59] It cannot be said that the CBEC supplementary instructions referred by the Commissioner (Appeals) do not apply to cases of service tax refunds [Para 4.36, page 56] The Commissioner (Appeals) erred in holding that the Deputy Commissioner, Mumbai was not empowered to order the refund for want of jurisdiction for the following reasons: a. reliance by Commissioner (Ap....
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.... Commissioner (Mumbai) does not have the jurisdiction to either receive or adjudicate upon the refund claim in respect of the service tax payments made in the jurisdiction of Kolkata Commissionerate, even in respect of the service recipient registered in his jurisdiction. [Paras 4.34 and 4.35, pages 55 and 56] Carrying forward the judicial precedents set by this Tribunal, the Appellant is entitled to get the refund claim at Mumbai. [Para 10, page 63] 2. If the answer to point No. 1 is in the affirmative, whether the appellant's submission for invocation of Section 14 of the Limitation Act to exclude the period covered in the entire process of litigation is not to be answered as held by Member (Technical) in para 4.37 of his order or the same needs a finding as held by Member (Judicial) in para 8.1 of his order The issue of application of Limitation Act was never before the lower authorities. In any event, Supreme Court in Mafatlal Industries had specifically ruled out the application of Limitation Act to the matters of refund under Central Excise Act, 1944. [Para 4.37, page 56] In terms of Order 7 Rule 10B of the Civil Procedure Code, 1908, the lower authorities were required ....
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....n (1) and sub-section (3) contained therein, start with the non-obstante clause, meaning thereby that the said sub-sections shall have the overriding effect, over the other section(s) captured in the said non-obstante clause, or to override those other section(s) in specified circumstances. Due to the non-obstante clause provided in sub-section (1) above, Section 66B, which is the charging section under the Act of 1994 is overridden. Similarly, sub-section (3) supra, also has the overriding effect, over all other provisions of Chapter V of the Act of 1994. In other words, the legislative intent behind insertion of Section 103 in the Act of 1994 was to keep the service mentioned therein, outside the purview of levy of service tax, even though Section 66B ibid mandates that levy of service tax shall be on all services provided in the taxable territory. Further, the effect of the other provision i.e., sub-section (3) in Section 103 ibid is that, while interpreting the said provision, then there is no scope for consideration of Chapter V of the Act of 1994, which, inter alia, deals with the provision for claim of refund, being made inapplicable for the purpose of said Section 103 ibid;....
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....n to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person :... (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund:..." 14.3 On reading of the above quoted statutory provision, it transpires that 'no specific person' (either the service provider or the service receiver) has been defined therein, who can lodge the refund claim before the competent authority under the statute. This fact is evident from use of the phrase 'any person', who can file the refund application, claiming refund of excess paid service tax. Thus, I am in agreement with the observations made by the learned Commissioner (Appeals) that the appellants, as the recipient of service, are permitted under the statute to file the refund claim application. Both the learned Members in....
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....ion of the designated authority has been clearly spelt out, without any ambiguity; different interpretation cannot be placed to hold that in case of refund of service tax, the proper authority would be only the designated authority at the service provider's end. 15. It is made clear that the provisions of Section 11B of the Act of 1944 were discussed herein above, only for the purpose that the same were considered in the impugned order and by the Referral Bench. However, in the present case, for filing of the refund claim, the cause of action arose, only owing to the reason of insertion of Section 103 in the Act of 1994, wherein exemption from payment of service tax on certain specific services were provided by way of grant of refund of service tax already paid. Thus, the provisions of Section 103 ibid alone have to be considered for ascertaining the issue, whether the appellants are entitled to refund of service tax or otherwise. 16.1 I find that the Learned Commissioner (Appeals) has endorsed the views expressed by the original authority in returning the refund claim application to the appellants. On the contrary, there is nothing contained in Section 103 of the Act of 1994, pr....
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....y the service provider M/s. ITD and the same was credited into the Central Government account under the Major Head 0044, with the minor head provided for the specific class of the taxable service. Since, the challan depositing the tax amount had specified such heads of account; the same was credited into the Central Government account and not in the account of any specific Commissionerate. In other words, no heads of account have been assigned or provided on Commissionerate-wise for collection and retention of the Government revenue. Any amount considered for refund by the designated authority, in any Commissionerate, should be drawn from the common pool of the Government of India and such amount should be deducted from the Minor Head (under the Major Head), provided for individual category of taxable services as 'Deduct Refunds', to be maintained in the prescribed records by the refund sanctioning authority. Therefore, it is improper to say that service tax payment made into the Government account through Kolkata Commissionerate cannot be claimed by way of filing the refund application before the Service tax authorities at Mumbai, on whose jurisdiction, the appellants are duly reg....
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....or recovery of non-paid duty under Section 28(4) of the Customs Act, 1962. The phrase/article 'the' used before the noun 'proper officer' in the said sub-section was interpreted by the Hon'ble Supreme Court, holding that article 'the' is called the Definite Article, because it points out and refers to a particular person or thing; as against the article 'a/an', which is not specific to a particular person. Thus, the legislative intent behind such statutory provision was clarified by the Hon'ble Court that the designated proper officer alone can issue the show cause notice and the said action cannot be initiated by the officers of DRI. While holding such view, the Hon'ble Supreme Court have also referred to the definition of 'proper officer', contained in Section 2(34) of the Customs Act, 1962. 17.3 On a conjoint reading of both the statutes i.e., the Act of 1962 and the Act of 1944, it would reveal that the phrase 'proper officer' has been defined in the former statute, but not in the later statute, and that Section 11B contained in the later statute has also not considered such phrase of 'proper officer', and has only referred to the phrase 'Assistant Commissioner of Central Exci....
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....), the jurisdictional officer of the service provider will not have even geographical jurisdiction to issue any show cause notice to the appellants herein. Therefore, the expression 'the assessing officer', in the present case, would mean the jurisdictional officer of the appellants, and not that of the service provider. In any case, the appellants would not have any locus standi to file their refund claim before the jurisdictional officer of the service provider, as they are not registered in that jurisdiction. 17.6 Further, in paragraph 4.16 and 4.17 of the Interim Order, reference has been made by the learned Member (Technical) to the judgments of the Hon'ble Supreme Court, delivered in the cases of: (i) Mafatlal Industries Ltd Vs. Union of India, 1997(89) ELT 249 (SC) (ii) Collector of Central Excise, Kanpur Vs. Flock (India) Put Ltd, 2000 (120) ELT 285 (SC) (iii)Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive), 2004 (172) ELT 145 (SC) (iv) ITC Ltd Vs. Commissioner of Central Excise, Kolkata-IV - 2019 (368) ELT 216 (SC) 17.7 The ratio in Mafatlal Industries (supra) is that, for an assessee to claim a refund, he should have challenged his own ass....
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.... in the present case inasmuch as the charge of service tax was ab initio deleted by an act of Parliament, and thus, there is no need of putting up any challenge to the assessment. In the present case, the appellants are not seeking to change or challenge any assessment at the supplier's end. The appellant's right to seek refund arose out of an act of the Parliament, by way of granting retrospective exemption, which overrides all assessments and hence, there is no question or need for seeking any re-assessment. 17.9 In paragraph 4.24 of the Interim Order, it is stated by the learned Member (Technical) that any exemption from the tax is an exception and needs to be claimed by the person, who wishes to avail the benefit of such exemption. In this context, the judgment of the Hon'ble Supreme Court, delivered in the case of Commissioner of Central Excise, New Delhi vs Hari Chand Shri Gopal, 2010 (260) E.L.T. 3 (S.C.) was referred to by him. On reading of the said judgment with reference to the case in hand, I am of the view that ratio of such judgment cannot be applied, in the light of deletion of the levy itself, by Section 103 of the Act of 1994 inasmuch as there is no qu....
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....ceedings, ultimately lead to this appeal. 17.11 I find that in paragraph 4.28 of the Interim Order, learned Member (Technical) has distinguished the judgements cited before him, concerning the issue in hand. It is a settled principle of law that the Bench of the same strength, cannot sit in judgement of the cases cited before it, and if it disagrees with any judgement cited, then the only recourse left for the Bench is to refer the matter to the President of the Tribunal, for constitution of a Larger Bench, for redressal of such dispute. In any case, with great respect, I want to express my views that the manner, in which the cited judgements were distinguished, is not in consonance with the statutory provisions vis-à-vis, the judicial pronouncements. For example, the judgement in the case of Indian Farmer Fertiliser Coop Ltd Vs. CCE MeerutII, 2014(35) STR 422 (Tri-Del.), affirmed by the Hon'ble Allahabad High Court in 2014(35) STR 492 (All.) is distinguished on the ground of it being sub silentio. In the said decided case, the assessee had first filed the refund claim in the jurisdiction of the service provider, which was rejected and then the assessee filed its claim with....
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....mmissioner for administrative convenience. The said observation by the Hon'ble Court is only a suggestion given to the government and thus, no ratio can be drawn to consider the present issue differently. On the contrary, the issue framed in the said appeal was answered in considering the view taken by the Tribunal. 17.14. In paragraph 4.31 of the Interim Order, the judgement of Oswal Chemicals & Fertilisers vs Commissioner of C. Ex., Bolpur, 2004 (164) ELT 89 (Tri-Del.) was referred to by learned Member (Technical). It has been held that the purchaser of goods could not have filed refund claim before his jurisdictional officer and it is stated that this order has been upheld by the Hon'ble Supreme Court at 2015 (318) ELT 617 (SC). However, this understanding, in my considered view, is not proper. The Hon'ble Supreme Court, in Paragraph 9 have held that the Tribunal's understanding that the refund was filed with purchaser's jurisdiction is incorrect and therefore, the Hon'ble Court had no occasion to give any ruling on this aspect of the controversy. 17.15 In paragraph 4.32 of the Interim Order, learned Member (Technical) has observed that Section 103 of the Act o....