TaxTMI 
TaxTMI 
2026 (6) TMI 1060
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....ssed by the Ld. Commissioner (Appeals), Central Excise, Customs and Service Tax, Bhubaneswar, whereunder the respective Orders-in-Original, all dated 31.10.2012, were upheld and the appellant's claims for refund of Service Tax under a mistake of law under Section 83 of the Finance Act, 1994 read with Section 11B of the Central Excise Act, 1944 were rejected. The details of the present appeals are set out hereunder: - Sl. No. Appeal No. Impugned Order-in- Appeal No. and Date Period involved Amount of refund of service tax in dispute Order-in-Original No. and Date Show Cause Notice No. and Date 1. ST/75193/ 2017 96/ST/B-II/ 2016 dated 27.10.2016 October, 2011 to March, 2012 Rs. 12,08,370/- AC/BLS/ST/REFU ND/S.TAX-BLS/ EPML/19/2012(R ) dated 31.10.2012 V(18)18/ST/REFUN D/EMAMI/BLS/201 2/9310 dated 04.09.2012 2. ST/75194/ 2017 95/ST/B-II/ 2016 dated 27.10.2016 May, 2011 Rs. 1,90,123/- AC/BLS/ST/REFU ND/S.TAX-BLS/ EPML/17/2012(R ) dated 31.10.2012 V(18)10/ST/REFUN D/EMAMI/BLS/201 2/9279 dated 31.08.2012 3. ST/75195/ 2017 87/ST/B-II/ 2016 dated 30.09.2016 June, 2011 to September, 2011 Rs. 9,05,034/- AC/BLS/S....
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....relates to the Service Tax paid by the appellant on the transportation of goods by rail undertaken by CONCOR, which, as per the appellant, has been paid under reverse charge on the wrong assumption of law that such services were categorizable as goods transportation agency. According to the appellant, service tax on such services had already been discharged by CONCOR as the service provider and the appellant, under the impression that reverse charge was applicable, also paid service tax on the same services. Consequently, the appellant filed separate refund claims under Section 11B of the Central Excise Act, 1944, as made applicable to Service Tax matters, claiming refund of the service tax so paid. 6.1. Show cause notices came to be issued proposing rejection of the refund claims. The appellant contested the proposals by filing replies and producing documents in support of its claims. 6.2. The matters were adjudicated vide separate Orders-in-Original, wherein the refund claims filed by the appellant were rejected on the ground that: (i) no documentary evidence as regards payment of service tax had been provided by the appellant and that there was no proof that CENVA....
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....herwise was in patent violation of Articles 265 and 300A of the Constitution of India. In any event whatsoever, CONCOR's outstanding liability to service tax, if any, could not have impacted the appellant's eligibility to refund. (iii) An erroneous payment of service tax by the appellant on a mistake of law belief ought to be refunded back to the appellant. The said amount of service tax had not been realized from the appellant's customers and the entire portion had been borne by the appellant. Since the amount had already been paid by CONCOR, the same would amount to double payment of tax. In other words, if the appellant had not paid those amounts, the Revenue could not have demanded the appellant to make such payments. In other words, the Department lacked authority ab initio to levy and collect such service tax from the appellant. In case the Department was to demand such payments, the appellant could have challenged it as unconstitutional and without authority of law. (iv) It is trite law that for the same service, both the service provider and the service receiver had paid service tax and on such basis the Government could not have unjustly enriched itself. ....
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..../s. Rapid and the invoice of CONCOR clearly stated the consignee's name and further stated "C/o. Emami Paper Mills Limited". This clearly showed that the ultimate consignee for the said goods was the appellant herein. However, the Commissioner (Appeals) failed to appreciate the true nature and scope of the contractual agreement between M/s. Rapid and the appellant. Reliance is placed upon Union of India v. Intercontinental Consultants and Technocrats Pvt. Ltd. - 2018 (10) G.S.T.L. 401 (S.C.). (ii) Invocation of Rule 5(2) of the Service Tax (Determination of Value) Rules, 2006 at the appellate stage was grossly illegal inasmuch as the said provision had not been invoked in the show cause notice. The Commissioner (Appeals) virtually set up a new case on behalf of the Revenue by framing the issue in appeal as to whether M/s Rapid could be considered as the appellant's pure agent and whether expenditure initially incurred for paying rail freight to CONCOR and subsequently re-imbursed could be abated from the value of Goods Transport service. (iii) Without prejudice, it is submitted that Explanation I to Rule 5(2) of the Service Tax (Determination of Value) Rules, 2006....
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....arantees under Articles 265 and 300A of the Constitution of India. On such count, the appellate authority should have interfered and he erred in not doing so. Reliance is placed on the judgment of the CESTAT in the case of M/s. McCann Erickson (India) Pvt Ltd Vs. The Commissioner (Service Tax Appeal No. 52352 OF 2024) wherein this issue has been exhaustively discussed. Reliance has also been placed on the decisions in the cases of Electrosteel Castings Ltd. v. Commissioner of Service Tax, Kolkata [(2026) 156 GSTR 209 (CESTAT-Kol)] (Departmental appeal thereagainst dismissed by the Hon'ble Calcutta High Court as reported in 2025-TIOL-88-HCKOL-ST) and Commissioner of Customs and Central Excise, Hyderabad GST Commissionerate, Telangana v. Credible Engineering Construction Projects Ltd., [(2026) 155 GSTR 745 (Telangana)]. 7.1. In view of these submissions, the Ld. Counsel for the appellant prayed for setting aside the impugned orders, with consequential reliefs to the appellant and for allowing the refund claims in question. 8. On the other hand, the Ld. Authorized Representatives of the Revenue reiterated the findings in the impugned orders. Accordingly, they prayed for reje....