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If service receiver has borne the incidence of tax, he can apply for refund of tax before his own jurisdictional officer.
Facts
Assessee is a manufacturer of exempted excisable goods which uses natural gas as a raw material. Transmission charges for transportation of natural gas is regulated. The regulated price was fixed at a lower rate than the price at which it was procured. The vendor issued credit notes for price differentials towards the value of the service, but no credit notes were issued for excess service tax collected by him from the assessee and paid to the Government. The Appellant being a service recipient of the service filed a refund claim with the jurisdictional tax authorities claiming refund of such tax. The application was considered as ‘not maintainable’ by both the authorities below on two grounds namely; (i) the tax amount is paid in the Government treasury by the vendor and not by the Appellant. (ii) the appropriate authority for sanction of the refund amount is the tax authorities having jurisdiction over the premises of the vendor and not the Appellant.
Held
Tribunal observed that there is no dispute as to the fact that excess tax has been paid for which refund application is maintainable under the statute. It held that since the recipient of service has filed the refund application before its jurisdictional authorities the same is proper and maintainable u/s. 11B of the Central Excise Act, 1944. As regards department’s stand that receiver is not entitled to file refund application, It was held that since the incidence of service tax has been borne by the appellant itself, the refund claim can very well be lodged by him claiming refund of excess service tax paid to the supplier of goods which was ultimately deposited into the Government Exchequer. In arriving at such conclusion, Tribunal relied upon its own decision in the case of Ms. Jindal Steel & Power Ltd. vs. CC & CE [2015] 64 taxmann.com 383 (New Delhi-CESTAT) and also decision of Hon’ble Allahabad High Court in the case of CC, CE & ST vs. Indian Farmer Fertilizers Co-op. Ltd. [2014] 47 GST 4/48 taxmann.com 79.
