M/S. Central Mines Planning And vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. BPL-EXCUS-000-180-13-14 dated 03/01/2014 passed by Commissioner of Customs & Central Excise and Service Tax, Bhopal.]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

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

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

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Central Mines Planning and Appellants

Desing Institute Ltd.

Vs.

Commissioner of Central Excise Respondent

Service Tax, Bhopal.

Appearance:

Shri Mohit Paul, Advocate for the Appellants

Ms. Ranjana Jha, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 27.1.2015

FINAL ORDER NOS. A/50275/2015-ST(SM)

Per Ashok Jindal :

The appellant has filed this appeal against the order denying their refund claim for the period March 11 to March 12. The facts of the case are that the appellant is engaged in providing the services under the category of Engineering Consultancy service. They filed refund claim of excess service tax paid by them during the impugned year. The refund claim was rejected as time barred and appellant has failed to pass bar of unjust enrichment. Aggrieved from the said order appellant is before me.

2. Ld. Advocate appearing to appellant submits that this is not a case of unjust enrichment as appellant has already refunded the excess service tax along with credit bill to its customers. Appellant raises the bills on provisional rate as informed by its Headquarters and actual rates are finalized on completion of audit at the end of financial year. He submits that appellant is entitled to adjust the excess payment of service tax under Rule 6(3) of the Service Tax Rules. There is no time limit prescribed under this Rule for making adjustment of excess service tax paid by the assessee. He submits that unjust enrichment can not be invoked to this case.

3. He further submits that in their own case for the earlier period this Tribunal vide Final Order No. 56347/2013 dated 30.4.2013 and 51737/2014 dated 28.3.14, has held that as per the provisions of Rule 6(3) of service tax Rules, 1994. The matter was remanded back to the adjudicating authority for deciding the issue holding that said Rule 6(3) is not dependent upon Rule 6(4) and there is no time limit for making adjustment of excess service tax paid by the appellant.

4. Ld. DR appearing for the Revenue submits that appellant has never requested for provisional assessment as provided under Rule 6(4) of the Service Tax Rule. In absence of any provisional assessment refund claim pertaining to period beyond one year has rightly been rejected by lower authorities as time barred. For claiming the refund, appellant has also to cross the barrier of unjust enrichment which has not been done in the present case.

5. Heard the parties.

6. I have gone through the orders of this Tribunal placed by the appellants in their own case on the identical issue. Therefore, I set aside the impugned order and remand the matter back to the adjudicating authority to decide the issue following the orders of this Tribunal in appellants own case for the earlier period.

7. Appeal is disposed of by way of remand.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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