In a major setback to M/s. East West Seeds India Pvt Ltd, the appellant the Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ), rejected the service tax refund .
The appeal is directed against the Order of the Commissioner of Goods & Service Tax and Central Excise (Appeals), Nasik. By the impugned order, Commissioner (Appeals) upheld the Order passed by the Assistant Commissioner, Goods and Service Tax, Aurangabad Rural Division rejecting the refund claim for refund of service tax filed by the appellant under provisions of Sub-Section 9(b) of Section 142 of the CGST Act, 2017.
Sachin Mishra, Advocate appeared for the Appellant and Sunil Kumar Katiyar, Assistant Commissioner, Authorized Representative appeared for the revenue.
The Counsel for the appellant contended that when the excess payment of service tax is not in dispute, the appellant is very much eligible for refund of excess service tax under section 11B of the central excise act, 1944 and that the government cannot retain any amount, without any authority of law. Article 265 of the constitution of India, bars to collect any tax without any authority of law.
The appellant has paid certain amounts under reverse charge mechanism by making self assessment of service tax payable under the reverse charge mechanism, on the basis of the “Trade License Agreement” entered into with their principals at Thailand for the use of their trade name/ brand name.
Subsequently the value of the taxable service got revised downwards as after negotiations the period of the agreement was revised and also the consideration to be paid.
The Tribunal of Sanjiv Srivastava, Technical Member noted that admittedly no revised return as provided for in terms of Rule 7B of the Service Tax Rules, 1994 or under provisions of the Section 142 (9) of the CGST Act has been filed by the appellant.
The Bench observed that “I do not find any merits in the submissions of the appellant to the effect that the refund application can be considered without revision of the return of the self-assessment made by them while filing the ST-3 return. It is worth noting the provisions in Service tax law provide for the revision of the return by the assessee himself.”
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