M/S Western Coalfields Ltd vs Commissioner Of Central Excise, Nagpur

(Arising out of Order-in-Appeal No. SN/127/NGP/2008 dated 28.11.2008 passed by the Collector of Central Excise (Appeals), Nagpur).

For approval and signature:

Honble Shri Anil Choudhary, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

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

4. Whether order is to be circulated to the Departmental : Yes authorities? ======================================================

M/s Western Coalfields Ltd. Appellant

Vs.

Commissioner of Central Excise, Nagpur Respondent

Appearance: Shri S.N. Kapoor, Advocate for Appellant

Shri A.B. Kulgod, AC (AR) for Respondent

CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing: 29.05.2015

Date of Decision: 29.05.2015

ORDER NO.

Per: Shri Anil Choudhary

The appellant M/s Western Coalfields Ltd. is in appeal against Order-in-Appeal No. SN/127/NGP/2008 dated 28.11.2008 passed by the Collector of Central Excise (Appeals), Nagpur.

2. The brief facts are that the appellant had filed refund claim on 29.3.2007 as follows: -

1.

Service Tax paid on Goods Transport Agency services provided prior to 1.1.2005 i.e. before levy of Service Tax on GTA.

Rs. 5,89,950/-

2. Service Tax paid on Coal transported through wagon loading whereas coal transported though wagon loading does not attract Service Tax.

Rs. 12,67,866/-

3. Excess payment of Service Tax 1.4.2005 to 31.3.2006

Rs. 2,72,844/-

Total Rs.21,30,660/-

On scrutiny of refund claim, the Revenue noticed that the assessee have not submitted original documents/bills indicating that the services are provided prior to levy of Service Tax and that the Service Tax had been paid on it. On receipt of discrepancy memo dated 3.4.2007, the assessee informed that the original documents were bound along with other vouchers and that it was a difficult task to carry all the bundles/files being voluminous and therefore, they sought leave to submit photo copies of the required documents duly certified by them, which were filed on 15.7.2007 for the period January, 2005 to October, 2006 along with photo copies of TR-6 challans. It was also explained by the appellant that the relevant original documents are bound with other vouchers and accordingly expressed difficulty in carrying the voluminous vouchers and filed to the officer of the Revenue and further prayed that some officials may be deputed to verify the records at the office of the appellant. Subsequently, show-cause notice dated 19.12.2007 was issued requiring the appellant as to why the refund claim should not be rejected under Section 11B read with Section 83 of the Finance Act, 1994.

2.1 The case of the appellant is that the show-cause notice was not required to be issued as Service Tax of Rs.5,89,950/- was paid by them under the heading Goods Transport Agency services provided to them before 1.1.2005. It was further contended that the Service Tax paid in mis-conception that the payment made to the transporter on or after 1.1.2005 should also fall under the said category. The legal position is that services rendered prior to 1.1.2005 will not fall under the category of Goods Transport Agency and hence the appellant is entitled for refund of the said amount. A detailed statement on services received prior to 1.1.2005 was submitted, a copy of which is also annexed in the appeal book. From the bare reading of detailed chart, it is evident that the details of voucher no. and date, name of service provider, Agreement/Work Order No., description of work, bill no., claim period and gross amount and taxable amount as well as tax have been reflected.

2.2 So far refund of Rs.12,67,8655/- is concerned, the same was in respect of services of loading and unloading of coal at the railway siding. It was contended that said service was given by the service provider/contractor and the appellant is a receiver of service, they are not liable to pay Service Tax, whereas the Service Tax is paid by mistake for the period 1.1.2005 to 31.10.2006 is refundable. In support, the appellant had filed details chart, copy of which is available in the appeal book also which showed similar details like name of the service provider, agreement/work order no., voucher no., bill no. etc. are available. It is also pleaded that the bill no. are not given in respect of some transaction.

2.3 As regards the receipt for Rs.2,72,844/- on account of excess payment on due to clerical error in calculation, the appellant had filed statement, a copy of which is also available, it is stated that the mistake occurred due to error in calculating the abatement amount. From the said statement, it is evident that the month-wise detail given of the Service Tax as calculated and deposited and also the actual Service Tax as applicable and the differential amount is claimed as refund.

2.4 The show-cause notice was adjudicated vide Order-in-Original dated 5.6.2008 rejecting the refund claim observing that the appellant has not submitted the copy of bills in original substituting their claim. As regards the Service Tax paid on coal transport wagon, loading and unloading of the coal and wagon loading did not attract the Service Tax. As regards the claim for excess payment of Service Tax, it is observed that the appellant have not submitted original bills/challans raised by the parties, ST-3 returns for the relevant period showing actual value and Service Tax payable as well as paid. It was further observed that from the documents submitted pertaining to excess payment of Service Tax, there is some mismatch. It was further contended by the appellant that payment in respect of the differential amount, it is observed in the Order-in-Original that the appellant failed to establish the fact that the payment was made under the protest.

2.5 Being aggrieved, the appellant preferred an appeal before the Commissioner (Appeals). The Commissioner (Appeals) was pleased to reject the appeal upholding the order of rejection observing that as per procedure the appellant is required to provide original documents of refund claim before the sanctioning authority and the same has not been done by the appellant. Being aggrieved, the appellant is before this Tribunal.

3. The Counsel for the appellant urges that they have never refused to produce the document before the authorities. Further, the concerned authority never have them opportunity to produce sample documents. Further, the stand of the appellant that the documents are bulky has not been found to be untrue. Accordingly, the appellant prays for remand of the matter to the adjudicating authority with proper direction to reconsider the claim.

4. The learned AR relies on the impugned order and further submits that the refund cannot be sanctioned without the proper verification.

5. Having considered the rival contention, I find that the refund claim should not be rejected in the manner it has been done in this case. Accordingly, I remand the matter back to the adjudicating authority with the following directions: -

(i) The appellant to produce original documents for a period any two months for the period in dispute.

(ii) After going through the sample documents produced before the adjudicating authority feels to test any documents, the same can be called for. If the concerned authority feels to verify the documents for the entire period, in that case, the adjudicating authority will depute the officials to verify the documents at the office of the appellant.

(iii) I also direct the appellant to file the CA certificate by the Chartered Accounted in support of the refund claim.

(iv) As regards the excess payment of Service Tax due to calculation error, the same shall be verified on sample basis for the period of two months and further corroborated by the certificate by the CA to be filed by the appellant.

(v) In case of verifying the calculation error, if the adjudicating aut hority feels to verify 100% verification, the adjudicating authority will depute the personnel for verification at the office of the appellant.

(vi) It is further directed that these procedures will be completed within a period of four months from the date of receipt of copy of this order.

(vi) I also direct the appellant to appear before the adjudicating authority with a copy of this order to seek opportunity of hearing.

6. Thus, the appeal is allowed by way of remand.

(Dictated and pronounced in Court)

(Anil Choudhary) Member (Judicial)

Sinha

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