ORDER
M.V. Ravindran, Member (J)
1. This appeal is directed against Order-in-appeal dt. 22.3.2006, which upheld the order-in-original, that rejected the refund claim of the appellant.
2. The relevant fact that arise for consideration are the appellant was receiver of services rendered by Goods Transport Operators during the period 16.11.1997 to 2.6.1998. The appellant paid the service tax of Rs. 1,01,751/- (Rupees one lakh one thousand seven hundred fifty one only) for such services received. Subsequently, appellant filed the refund claim of service tax paid, on the ground that it was paid wrongly and was not payable. The adjudicating authority rejected the said refund claim after issuing the show cause notice to the appellant. The appellant carried the matter in appeal before the Commissioner (Appeals), who vide his order dt. 22.3.2006 did not agree with the contentions of the appellant and rejected the appeal and upheld the order. Hence this appeal by the appellant.
3. The representative of the appellant argues that the issue involved in this case is to be considered from a different angles. It is his submission that the appellant paid service tax based upon a Trade Notice issued by the Commissioner. It is the submission that the appellant paid duty “under protest” and hence he has right to claim the refund of the amount so wrongly paid. Alternately, the appellant submits that the issue of payment of service tax could have arisen only, if the provisions were during the relevant period. It is the submission that the provisions of Section 68 were for the payment of service tax by the service provider and could not be used service receiver. It is also his submission that the retrospective amendment which was carried out by Finance Act, Subsequently, did not alter the situation and the appellant is not liable to pay service tax during the relevant period. It also submitted that the issue involved in this case is covered by the judgment of the division Bench in the case of Sunrise Structural & Engg. Ltd. and Ors. v. CCE, Nagpur 2004 (117) ELT 307 (Tri.Mumbai) and by the case of Laghu Udyog Bharati and Anr. v. UOI and Ors. Reported in 1999 (XC2)-GJX 3396-SC. It was also his submission that the appellants could not be put at disadvantageous situation having paid the amount on their own.
4. The Ld. DR reiterated the findings of the Commissioner (Appeals) and submits that the rejection of the refund claim was correct and there is no reed for the interference in the said order. He relied upon the judgment of the division bench in the case of J.K. Industries Ltd. v. Commissioner of Central Excise Indore 2006 (3) S.T.R. 14 (Tri.Del.) and in the case of Jindal Steel and Power Limited v. Commissioner of Central Excise, Raipur .
5. Considered the submissions made at length by both sides and perused the records. It is undisputed that the appellant paid the service tax of Rs. 1,01,751/- (Rupees one lakh one thousand seven hundred fifty one only) for the services received by them from goods transport operator for the period 16.11.1997 to 2.6.1998 on their self assessment. It is also undisputed that the appellant had paid service tax “under protest”. On a specific query from the Bench, the representative of the appellant was not in a position to show that the appellant was ever directed to pay the Service Tax amount by the department.
6. The argument of the representative that the provisions of Section 68 retrospectively amended does not make the appellant liable to pay the service tax as the receiver of services from goods transport operator does 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 Hon’ble Supreme Court in the case of Gujarat Ambuja Cements Ltd. v. Union of India . Since the retrospective amendment has been hold to be constitutional by the Hon’ble Supreme Court, the arguments of the appellant do not have merits. Hence there is no substance in this argument.
7. As regards the refund of the amount which has been paid by the appellant on their own self assessment albeit ‘under protest’, I find that on an identical set of facts the principle bench of the Tribunal in the case of J.K. Industries Ltd. (Supra), held as under:
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 period for filing of the returns was provided in Section 71A which was six months from the date on which the Finance Act, 2003 received the assent of the President, and the appellant filed the return within the period so prescribed In a case which was covered by Section 71A read with Rule 7A the date of filing of return cannot be drawn from the provisions of Section 70. In fact, Section 71A clearly specified that the provisions of Section 70 did not apply to persons referred to in the proviso to Sub-section (1) of Section 68 for the filing of return. It cannot, therefore, be accepted that the time limit for filing of return by the appellant should be computed on the basis of the provision of Sections 70 and 73 as from the date on which the half-yearly return could have been filed under Section 70 read with Rule 7 which were wholly inapplicable in case of the appellant when specific provisions of Section 71A was made in the context of the persons like the appellant for filing of the return and period within which the return was to be furnished was also provided. The contention that the appellant was not liable to pay the service tax since the recover would have been time barred on the basis of the deemed liability having been arisen earlier on the expiry of the relevant period in 1998, is, therefore, wholly misconceived. The return filed by the appellant under Section 71A on the basis of self-assessment could have been verified under Section 71 by the concerned officer in view of the specific provision made in Section 71A to the effect that Section 71 shall apply to such return. However, even when it was not taken up for verification, it cannot be said that the service tax paid on the basis of self-assessment was not tax assessed. Since the service tax was validly paid under the liability arising under the amended provisions, particularly under Section 71A requiring the appellant to file such return, the appellants are not entitled to the refund. There was no question of issuance of any show cause notice under Section 73 for recovery, because, the appellants had paid the tax on self assessment basis under the return filed under Section 71A of the Act read with Rule 7A of the Act. None of the contentions raised on behalf of the appellant has therefore any substance.
The facts of the case before me today are squarely covered by the decision of the Principle Bench against the appellant, hence the following ratio of the judgment in the case of J.K. Industries (Supra), I do not find any merits in the appeal filed by the appellant.
8. Accordingly, in the facts and circumstances of the case, the appeal filed by the appellant is devoid of merits and is dismissed.
(Dictated in court)