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2015 Supreme(Mad) 495
HIGH COURT OF JUDICATURE AT MADRAS
R. SUDHAKAR & R. KARUPPIAH, JJ.
E.I.D. Parry India Limited, rep. by its Senior Executive - Appellant
Versus
Customs Excise and Service Tax, Appellate Tribunal & Others - Respondents
Civil Miscellaneous Appeal Nos. 599, 2511, 2512, 2711 of 2007 & 2332 of 2009
Decided On : 27-01-2015
For the Appellant :S. Muthuvenkataraman, Advocate.
For the Respondents: R2 & R3, T. Chandrasekaran, Standing Counsel.
The users of the service rendered by the Goods Transport Operators are liable to pay service tax, and the appellant was not entitled to a refund based on the decision in the case of Gujarat Ambuja Cements Ltd. V. Union of India.
Headnote:
Customs, Excise and Service Tax - Service Tax - Refund of duty paid on service tax under protest - Applicability of Supreme Court judgment in the case of L.H.Sugar Factory - Finance Act, 2000 amendments - Validity of levy of service tax on users of services rendered by Goods Transport Operators - Entitlement for refund of service tax already paid
Fact of the Case:
The appellant/assessee paid service tax under protest and claimed refund, which was rejected by the Original Authority. The Tribunal upheld the order of the Original Authority, stating that in view of the decision in the case of Gujarat Ambuja Cements Ltd. V. Union of India, the question of refund does not arise.
Finding of the Court:
The Court held that the users of the service rendered by the Goods Transport Operators are liable to pay service tax, and since the appellant had already paid the service tax, the question of refund did not arise. The Court dismissed all the Civil Miscellaneous Appeals.
Issues: Applicability of Supreme Court judgment in the case of L.H.Sugar Factory, validity of levy of service tax on users of services rendered by Goods Transport Operators, entitlement for refund of service tax already paid
Ratio Decidendi: The Court relied on the decision in the case of Gujarat Ambuja Cements Ltd. V. Union of India, which upheld the validity of the levy of service tax on users of services rendered by Goods Transport Operators, and concluded that the appellant was not entitled to a refund.
Final Decision: All the Civil Miscellaneous Appeals were dismissed by the Court.
R. Sudhakar, J.
1. The above Civil Miscellaneous Appeals filed by the assessee as against the Final Orders of the Customs, Excise and Service Tax Appellate Tribunal, Chennai were admitted by this Court on the following substantial questions of law:
"C.M.A.No.599 of 2007:
1. Whether the Tribunal is right in holding that the judgment of the Supreme Court in the case of L.H.Sugar Factory is not applicable to the present case of the appellant?
2. Whether the Tribunal is right in ignoring the fact that the demands are time barred and when the same was not covered by the tenet of the retrospective validation?
C.M.A.Nos.2511 & 2512 of 2007:
(a) Whether the Tribunal is right in discriminating between the appellant and other similarly placed assesses?
(b) Whether the Tribunal is right in ignoring the fact that the demands are time barred and when the same was not covered by the tenet of the retrospective validation?
(c) Whether the Tribunal is right in holding that the judgment of the Supreme Court in the case of L.H.Sugar Factory is not applicable to the present case of the appellant?"
C.M.A.No.2711 of 2007:
(1) Whether the Tribunal is right in dismissing the appeal filed by the appellants for refund of duty paid on service tax under protest?
(2) Whether the Tribunal is right in discriminating between the appellants and other similarly placed assessees?
(3) Whether the Tribunal is right in ignoring the fact that the demands are time barred and when the same was not covered by the tenet of the retrospective validation?
(c) Whether the Tribunal is right in holding that the judgment of the Supreme Court in the case of L.H.Sugar Factory is not applicable to the present case of the appellant?"
C.M.A.No.2332 of 2009:
(1) Whether the Tribunal is right in dismissing the appeal filed by the appellants for refund of duty paid on service tax under protest?
(2) Whether the Tribunal is right in discriminating between the appellants and other similarly placed assessees?
(3) Whether the Tribunal is right in ignoring the fact that the demands are time barred and when the same was not covered by the tenet of the retrospective validation?
2. The brief facts are as follows:
The appellant/assessee is engaged in the manufacture of sanitaryware Sugar, Molasses, Denatured spirit etc. They availed the services of Goods Transport Operator during different periods between 1997 and 1999. The goods transport service was brought under service tax with effect from 16.11.1997. There was a wide protest by the transporters for levy of service tax and the same was challenged before the Supreme Court. The Supreme Court in the case of Laghu Udyog Bharati Vs. Union of India reported in 1999 (112) ELT 365 (SC) struck down the provisions of Service Tax Rules, thereby making the service receiver liable to pay service tax. Consequently, amendments were brought to Finance Act, 2000, whereby the service receiver was liable to pay service tax. The said amendment was challenged and the Supreme Court in the case of Gujarat Ambuja Cements Ltd. V. Union of India reported in 2006 (3) S.T.R. 608 upheld the said amendment.
3. In the present case, the assessee paid the service tax under protest and claimed refund, which was rejected by the Original Authority. On appeal preferred by the assessee, the Commissioner (Appeals) allowed the same, but the Tribunal, on the appeal filed by the Revenue, restored the order of the Original Authority declining to grant refund.
4. The Tribunal, in this case, had clearly held that in view of the decision in the case of Gujarat Ambuja Cements Ltd. V. Union of India reported in 2006 (3) S.T.R. 608, the question of refund does not arise. The Tribunal also came to hold that it is of no avail for the assessee to pay the tax under protest. As the return was filed in terms of the statutory provisions, it is deemed to be voluntary payment of tax, more so, in a case of self-assessment.
5. Aggrieved by the orders of the Tribunal the assessee is before this Court.
6. Heard lea
