Payment of service tax
CESTAT, Mumbai Bench
Uni Deritend Ltd.
v.
Commissioner of Central Excise, Nagpur
M. V. RAVINDRAN, JUDICIAL MEMBER
ORDER NO. A/603/C-IV/SMB/2007
IN APPEAL NO. ST/126/2006
April 5, 2007
Section 68 read with section 65, of the Finance Act, 1994 - Payment of
service tax - Period from 16-11-1997 to 2-6-1998 - Whether assessee, receiver
of goods transport operator services, was amended liable to pay service tax by
virtue of retrospective amendment in section 68 which made recipient of service
to discharge tax liability - Held, yes [Para 6]
Section 11B of the Central Excise Act, 1944 - Claims for refund of
duty - Period 16-11-1997 to 2-6-1998 - Whether where assessee paid service tax
on self assessment basis, same was valid collection of tax and assessee was not
entitled for its refund - Held, yes [Para 7]
The assessee was availing the services rendered by the Goods Transport Operators (GTO). It paid the service tax for such services on its own self assessment for the period 16-11-1997 to 2-6-1998. Subsequently, the assessee filed refund claim of service tax paid on the ground that it was paid wrongly and was not payable. The adjudicating authority rejected the assessee’s claim. On appeal, the Commissioner (Appeals) upheld the order of the adjudicating authority. In instant appeal, the assessee contended that it was not liable to pay service tax as the provisions of section 68 were for the payment of service tax by the service provider and that the retrospective amendment did not alter the situation.
The assessee’s agreement that the provisions of section 68
retrospectively amended did not make it liable to pay the service tax, as the
receiver of services from goods transport operator did not have any basis. The
constitutional validity of the entire retrospective amendments, which made the
recipient of the services to discharge tax liability, has been upheld by the
Supreme Court in the case of Gujarat
Ambuja Cements Ltd. v. Union of India [2005] 1 STT 41. Since the retrospective amendment has been held
to be constitutional by the Supreme Court, the argument of the assessee did not
have merits. Hence, there was no
substance in that argument. [
As regards the refund of the amount which had been paid by the assessee
on its own self assessment albeit ‘under protest’, it was found that the
Tribunal in the case of J.K. Industries Ltd. v. CCE [2006] 4 STT 117 (New
Delhi-CESTAT) held that the service tax paid on the basis of self-assessment as
per the statutory provision was a valid collection of tax by the Government
and, therefore, it was in no way refundable to the appellant who was liable to
pay the same under the amended provisions. The facts of the instant case were
squarely covered by the decision in the case of J.K. Industries Ltd. (supra)
and, hence, following the ratio of that judgment there was no merit in the
appeal filed by the assessee. [