Bharti Airtel Ltd vs Cce, Chandigarh

(Arising out of OIA No.175/CE/CHD/2009 dt.2.4.09 passed by CCE (Appeals), Chandigarh)

Bharti Airtel Ltd. Appellants

Vs.

CCE, Chandigarh Respondent

Appearance:

Appellant: Ms. Krati Somani, Advocate

Respondent: Shri V.P.Batra, AR

HonbleMr.P.K.Das, Member (Judicial)

HonbleMr.P.S.Pruthi, Member (Technical)

1.

Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No

3. Whether their Lordships wish to see the fair copy of the order?

seen

4. Whether order is to be circulated to the Department Authorities?

Yes

Coram:Honble Mr.P.K.Das, Member (Judicial)

HonbleMr.P.S.Pruthi, Member(Technical)

Date of Hearing/decision: 22.01.2015

FINAL ORDER NO.50729/2015

PER: P.S.PRUTHI

The appellant is in appeal against the impugned Order-in-Appeal in which the Commissioner rejected the claim of Rs.15,64,222/- filed by the appellant for the period from 18.4.2006 to 20.6.2006.

2. The facts of the case are that the appellant filed refund claim in respect of service tax paid by them on services provided by them to foreign network operator by way of providing international roaming facility to the subscriber of the foreign network during the visit to India. The said service was exempted vide Notification No.36/2007-ST dated 15.6.2007 retrospectively from 1.7.1994 to till 14.1.2007. The Commissioner (Appeals) confirmed the order of the adjudicating authority rejecting refund claim on the ground that the documents had not been produced to show that the amount charged to the foreign network operator was as per agreement and also to show that no service tax was charged. According to the Commissioner (Appeals), the adjudicating authority had rejected the refund claim on the basis that the appellant failed to provide the details of payment of service tax on the service in India provided to international inbound roamers and to show that the amount of Rs.15,64,222/- is identifiable in the invoices relating to international inbound charges.

3. Heard both sides and considered the submissions.

4. Learned Counsel for the appellant stated that the charge in the show cause notice was that the appellants refund claim is hit by doctrine of unjust enrichment laid down in section 11B(1) of Central Excise Act, 1944 and made applicable to service tax law. In as much as burden of proof is cast on them to prove the incidence of service tax has not been passed on to other persons. According to her, the adjudicating authority rejected the refund claim on the ground that from the documents submitted, namely, TR-6 challan, sample copies of agreement, sample invoices, ST-3 return, it cannot be ascertain that gross service tax paid by the appellant also includes service tax paid on the international inbound roaming services. The adjudicating authority has recorded that the verification report was asked from the Superintendent, Central Excise Range-III, Mohali, who filed letter No.C.No.CE-20/Refund Misc/Airtel/01/M-III/07/2531 dated 21.9.2007 asking for information as to whether the service tax has been paid on the services provided to supply of international inbound roamers because ST-3 return filed by the appellant shows only total amount chargeable during a particular period. The Adjudicating authority has further recorded that the appellant has failed to provide the details of payment of service tax on the services provided to international inbound roamers. Learned Counsel stated that above letter of Superintendent has not been supplied to them. She argued that the allegation in the show cause notice was based on unjust enrichment whereas the findings of the adjudicating authority and the Commissioner (Appeals) are based on failure to provide certain details.

5. Learned AR for the department reiterates the findings of the Commissioner (Appeals).

6. We have considered the submissions of both sides.

7. At the outset, we find that the Tribunal in the case of Vodafone Cellular Ltd. vs. CCE, Pune-III-2014 (34) STR 890 (Tri.-Mum.) has held that the principle of unjust enrichment would not be applicable to export transactions as specifically provided in section 11B of Central Excise Act, 1944. The facts of the case of Vodafone Cellular Ltd. (Supra) are similar to the facts of the present case. However, we further note that the adjudicating authority and the Commissioner (Appeals) have come to the conclusion that the appellant could not satisfy the lower authority that the amount of service tax paid by them is correlated with the invoices raised on foreign mobile operator for inbound international roaming charges. The appellant, on the other hand, claim that the information has been provided and even chartered accountants certificate has been submitted to the effect that the service tax of Rs.15,64,222/- has been paid in connection with inbound international roaming service and that the service tax was not shown in the invoices nor collected from the customers. The Revenue could have verified, if required, the authenticity of the CAs certificate from the records available with the appellant. Apparently this has not been done due to lack of communication between the two sides. Ld.Counsel submits that the show cause notice seeks to reject the refund claim only on the ground that unjust enrichment, does not appear to be, correct statement because in para 3 of the show cause notice it is stated as under:

3. A scrutiny of the documents filed alongwith the refund claim reveals that the sample invoices show only the total amount chargeable during the particular month but no documents have been provided in support of their contention that the amount charged as per the agreement with the foreign mobile operators and that Service Tax was not charged in the invoices. Though the noticee in their dated 28.6.2007 have claimed that they have neither collected Service Tax from the service recipient nor passed on the burden of incidence of Service Tax to any person, yet all the documents submitted by them are silent to this effect.

8. We find that the principle of unjust enrichment would not be apply in this case. Export of service being exempted under Notification No.36/2007-ST dated 15.6.2007, the only issue that remained for verification of quantum of refund to be sanctioned. We remand this case to the adjudicating authority for determination of quantum of service tax refund to be sanctioned. The appellant may provide all necessary details and assist the adjudicating authority for verification of refund amount.

9. The appeal is allowed by way of remand in the above terms.

(Pronounced in the court)

(P.S.PRUTHI) (P.K.DAS)

MEMBER (TECHNICAL) MEMBER(JUDICIAL)

mk

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