Sterlite Industries (I) Ltd vs Commissioner Of Central Excise

[Arising out of Order-in-Appeal No.85/2009 dt.24.3.2009 passed by the Commissioner of Central Excise (Appeals), Madurai]

Sterlite Industries (I) Ltd. Appellant

Versus

Commissioner of Central Excise, Tirunelveli Respondent

Appearance:

Shri G.Krishnamurthy, Advocate For the Appellant Shri M. Rammohan Rao, DC (AR) For the Respondent

CORAM:

Honble Shri R. Periasami, Technical Member

Date of hearing/decision :26.3.2015

FINAL ORDER No.41076/2015

The appellants filed appeal against the Commissioner (Appeals) order dt. 24.3.2009.

2. The brief facts of the case are that appellants have filed refund claims for an amount of Rs.33,35,523/- towards service tax paid on Engineering Consultancy Service received by them from non-residents and Rs.5,76,235/- towards service tax paid on reimbursable expenses paid during the period April 2004 to September 2005. The adjudicating authority has rejected the refund claims totalling to Rs.39,11,758/- as ineligible under Section 11B of Central Excise Act,1944. On appeal, the Commissioner (Appeals) upheld the order and dismissed the appeal. Hence the present appeal.

2. The Ld. Advocate reiterates the grounds of appeal and submits that they have paid the service tax on import of service in 2004-05. They have paid the service tax for the services received from their foreign experts and he submits that have also paid service under protest under rule 2(1)(d) (iv). The entire tax service tax was paid prior to 18.4.2006. He submits that the issue now stands settled by the decision of Honble Supreme Court in the case of Union of India Vs Indian National Ship Owners Association 2010 (17) STR J 57 (SC) and Boards circular No.276/8/2009-CX.8A dt. 26.9.l2001 wherein the Board has categorically clarified that in view of apex courts decision (supra), the liability of service tax on reimburse charges would arise w.e.f. 18.4.2006 i.e. the date of enactment of Section 66 of the Finance Act. In this case, the service tax was paid during the period prior to 18.4.2006 and hence it is liable to be refunded.

3. On the other hand, Ld. A.R reiterates the findings. He also submits that appellant claiming tax paid under protest is not verified and no documents produced.

4, After hearing both sides, the short issue in this appeal is claim of refund of the amount paid as service tax under reverse charge during the period 2004-05. I find that in view of Honble Apex Court decision (supra), the issue stands settled in favour of appellant as payment of service tax by the service recipient under reverse charge is made applicable w.e.f. 18.4.2006 and the same is confirmed by the Boards circular dt. 26.9.2001. Since service tax is not demandable prior to the period 18.4.2006, in view of the above Supreme Courts decision, the appellants are eligible for refund. I also find that Appellants produced all the letters of protest submitted to the Superintendent, SIPCOT Range, Tuticorin which are enclosed at pages 50 to 82 of the paper book. On perusal of appellants letter dt. 28.4.2006 addressed to Asst. Commissioner of Central Excise, Tuticorin enclosed at page 83 of the paper book wherein the appellant made a table mentioning the details of service tax paid under T.R.6 challan and in the last column, it is stated that as per their letter, service tax was paid under protest. On perusal of letters dt. 22.4.2004, 30.9.2004 addressed to Superintendent of Central Excise, SIPCOT, I find that appellants have clearly mentioned that they are paying service tax under protest and requested the department to take on record the protest. In view of the above, appellants are eligible for refund. Accordingly, the impugned order is set aside and the appeal is allowed.

(Operative part of the order pronounced in open court on 26.3.2015)

(R. PERIASAMI) TECHNICAL MEMBER

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