The Customs Excise and Service Tax Appellate Tribunal (CESTAT) Kolkatta, ruled that Service Tax Refund can be claimed on the basis of monthly consolidated Service Tax Certificate for Transportation of goods (STTG Certificate) issued by the Indian Railways.
The appellant is engaged in the manufacture of various petroleum products classifiable under Chapter27 of the schedule to the Central Excise Tariff Act. 1985. They had submitted 3 (three) claims of refund of Service Tax recovered from them by South Eastern Railways towards transportation of petroleum products during the months of October’12, November’12 and January’13 on the ground that in service by way of transportation in India by Rail of such petroleum goods were exempt from Service Tax. The refund claim was granted.
Against the above OIO’s Revenue preferred an appeal before Ld Commissioner of Central Excise and the same was allowed stating that the refund granted should be recovered from the IOCL along with interest in terms of section 68 of the Finance Act, 1994, the service provider is liable to pay Service Tax. Hence, if paid, the refund of Service Tax, if eligible is available to the person who has paid, i.e the service provider.
The Judicial Member P.K.CHOUDHARY has pronounced the Order on an appeal filed by M/s Indian Oil Corporation Ltd.
In the light of decisions which was decided by the Constitution Bench in Mafatlal Industries Ltd Vs Union of India 1997 (89) ELT 247(SC). This ratio was followed in Indian Farmer Fertilizer Coop. Ltd. Vs C.C.E., Meerut-II 2014 (35) S.T.R. 422 (Tri. – Del.) and affirmed by Allahabad High Court 2014 (35) S.T.R. 492 (All.).
The principle which has been enunciated in the Constitution Bench judgment is as follows:
“A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be.”
The following clause shall be inserted, a Service Tax Certificate for Transportation of goods by Rail issued by the Indian Railways, along with the photocopies of the railway receipts mentioned in the STTG certificate Hence, a Certificate issued by railway is a valid document under the Act.
While allowing the appeal AAR also states that the refund claim is to be obtained from the concerned tax authority on the basis of monthly consolidated (STTG) certificate issued by Railways and eligibility for refund of service tax is sustainable on legal grounds.
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