OTS LTD Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE learned Custom, Excise and Service Tax, Appellate Tribunal, East Zone Bench, Kolkata was directed to send the statement of case in terms of Section 35 H(3) of the Central Excise Act, 1944 by the order of this Court upon which following questions of law have been referred to this Court : - 1(i). Whether the Tribunal was justified in law confirming the recovery of the refund from the applicant who, being the transport operator, (Service Provider) admittedly is not liable to pay any service tax whereas TISCO, being the person who availed the services of the transport operator, is liable for payment of service tax under law? (ii) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law holding the refund to be recovered from the applicant and not from TISCO, especially in view of the fact that the applicant is not an assessee under the Act and TISCO is the assessee? 2 Whether Section 117 of the Finance Act, 2000 had any application to the case of the applicant and whether it was liable to pay interest @ 24% per annum in terms thereof ?

(3.) HOWEVER , applicant's own case is that it did not pay the tax and tax amount was paid by TISCO (the service availer). Since the tax was not paid by the applicant, therefore, it could not have been refunded to the applicant, therefore, applicant obtained a consent letter from the service availer M/s. TISCO and because of that reason the tax deposited by TISCO, was paid to the applicant. Applicant also submitted an affidavit before revenue authority on 29.12.1999 and gave undertaking that amount refunded to the applicant shall be paid back to the Department in case the refund is found to be erroneous. It appears from the order of the CEGAT dated 14.01.2003 that TISCO might have filed an application for refund of said tax amount but learned counsel for the TISCO Sri M.S. Mittal submitted that this observation of the Tribunal is erroneous as TISCO did not file the application. This contention of TISCO is seriously contested by the applicant's counsel Sri Binod Poddar and submitted that TISCO submitted the application for refund. This fact may not be very much relevant for the purpose of deciding the question referred to us as undisputedly, the tax amount was paid by the TISCO, the service availer and it was refunded to the applicant (service provider), with consent and authorisation given by the TISCO in favour of the applicant.