M\/s. Indian Oil Corporation Ltd. Versus Commissioner of GST & Central Excise Chennai
Service Tax
2018 (12) TMI 790 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 4-12-2018
Appeal No. ST\/47\/2011 – Final Order No. 43025\/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
\nShri M.N. Bharathi, Advocate for the Appellant
\nShri K. Veerabhadra Reddy, ADC (AR) for the Respondent
\nORDER
\nPer Bench
\nBrief facts are that the appellant is a public sector undertaking under the Ministry of Petroleum and Natural Gas, Govt. of India. They were providing the facility of storage to IBP Co. Ltd. and received consideration for the services provided under 'Storage and Warehousing services'. They discharged service tax for such services. Later, the Ministry of Company Affairs accorded sanction to the scheme of amalgamation of M\/s. IBP Co. Ltd. with the appellant's organization (M\/s. IOC) vide order dated 30.4.2007. In view<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n e providing storage services to M\/s. IBP Co. Ltd. Both these entities were amalgamated by an order passed by Ministry of Company Affairs dated 30.4.2007. In such order, it is specifically stated that the amalgamation is to take effect from 1.4.2004. The amalgamation having taken effect from 1.4.2004, both these entities have become a single entity with effect from 1.4.2004. Therefore, the services provided by the appellant to M\/s. IBP Co. Ltd. during the relevant period from April 2004 to August 2007 will be services, if any, provided to one self and therefore not subject to levy of service tax. The appellant has therefore filed the refund claim on 14.3.2008. The refund claim has been filed within one year as prescribed under section 11B of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1994. The authorities below have rejected the refund claim alleging that the service tax having been paid in 2004, the refund claim filed on 14.3.2008 is barred by limitation. He adve<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n aim on14.3.2008 which is well within the time. Therefore, the rejection of refund claim on the ground of time-bar is erroneous. He relied upon the decisions in the following cases:- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n r it is specifically stated that the amalgamation is to take effect from1.4.2004. The relevant paragraph of the amalgamation scheme is reproduced as under:- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n efund claim is not hit by time bar. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. Indian Oil Corporation Ltd. Versus Commissioner of GST & Central Excise ChennaiService Tax2018 (12) TMI 790 – CESTAT CHENNAI – TMICESTAT CHENNAI – ATDated:- 4-12-2018Appeal No. ST\/47\/2011 – Final Order No. 43025\/2018Service TaxMs. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri M.N. Bharathi, Advocate for the Appellant Shri K. … Continue reading “M\/s. Indian Oil Corporation Ltd. Versus Commissioner of GST & Central Excise Chennai”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-15528","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/15528","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15528"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/15528\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15528"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15528"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15528"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\na. Indian Oil Corporation Ltd. Vs. Commissioner of Service Tax, Mumbai – 2015 937) STR 575 (Tri. Mumbai)
\nb. Commissioner of Central Excise, Trichy Vs. IOC Ltd. – 2011 (23) STR 625 (Tri. Chennai)
\nc. Commissioner of Service Tax, Delhi Vs. ITC Hotels Ltd. – 2012 (27) STR 145 (Tri. Del.)
\n2.1 With regard to the issue of unjust enrichment, he submitted that there is no service provided at all as both the entities have been merged into one and therefore no question of unjust enrichment would arise. To support his argument, he relied upon the decision of the Tribunal in the case of Usha International Ltd. Vs. CST – 2016 (43) STR 552 (Tri. Del.)
\n3. The ld. AR Shri K. Veerabhadra Reddy supported the findings in the impugned order. He submitted that the relevant date for computing the limitation as prescribed <\/p>\n
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\n“1. Para 27 of the above specifies the following:-
\n“Now, therefore, the sanction of the Central Government is hereby accorded to the Scheme (being Annexure A1 to the petition) of IBP (Transferor Company) with IOC (Transferee Company) under section 391(2) read with section 394 of the Act. The scheme shall be binding on the shareholders and creditors of the Transferor Company and Transferee Company and all concerned with effect from 1.4.2004 being the appointed date under the said scheme.
\n2. Part II of the Scheme of Amalgamation between IBP and IOC for which sanction has been accorded vide the Order of Central Govt. stated above specifies that the Amalgamation is with effect from the Appointed Date i.e.. 1.4.2004.”
\nFrom the above, it can be seen that the appointed date for the amalgamation to take effect is 1.4.2004. The order<\/p>\n
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\n5.1 The issue of unjust enrichment in the case of amalgamation has been analyzed by the Tribunal in the case of Usha International Ltd. (supra). The Tribunal in the said case has referred to the decision in ITC Hotels Ltd. (supra). In the said case, the facts reveal that the service tax pertaining to refund was paid by the assessee for the period from 1.3.2007 to 31.8.2008. As a consequence of merger with effect from 1.4.2007, refund claims were filed. These were rejected by the authorities below on the ground that the assessee had not established that the incidence of duty was not passed on to another. Though the order of merger was passed High Court on 26.5.2008, the merger was to take effect from 1.4.2007. The Tribunal after analyzing the issue held that the assessee is eligible for refund as the service was rendered to self and the burden cannot be passed on to one self. Further, in the case of M\/s. Sescot Sheet Metal Works Ltd. Vs. Commissioner<\/p>\n
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