IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
ST/MA(Ors)1525/09-Mum & APPEAL NO. ST/140/09-Mum
(Arising out of Order-in- Appeal No. KKS(21)21/STC/2009 dtd. 20.3.2009 passed by the
Commissioner of Central Excise (Appeals), Mumbai)
Oil & Natural Gas Corporation Ltd. – Appellant
Commissioner of Service Tax, Mumbai – Respondent
Shri Shri D.B.Shroff, advocate with Shri Manoj Sanklecha, Advocate for Appellant
Shri Shri A.K.Prasad, Jt.C.D.R. for Respondent
Coram: Mr. P. G. Chacko, Member(Judicial) and Mr. Sahab Singh , Member(Technical)
Date of decision 31/03/11
AIT Head Note: There is no provision in the Central Excise Act obligating the
department to issue a show-cause notice proposing to reject a refund claim filed under
Sec.11B of the Act. (Para 19)
As regards unjust enrichment, we find that ONGC did not furnish any documents to
show that the burden of service tax had not been passed on to any other person.
Therefore, justifiably, the Asstt.Commissioner held the refund claim to be barred by
unjust enrichment.(Para 22)
Before proceeding to deal with ONGC’s refund claim, the Asstt.Commissioner has to
satisfy himself that the service tax amount of Rs. 32,64,75,333/- paid by M/s. CGG
Marine was, in fact, reimbursed to them by ONGC. If, in fact, there was no such
reimbursement of the amount by ONGC, the Corporation cannot claim any refund of
the tax under Sec.11B of the Act. (Para 23)
O R D E R
Per : P.G.Chacko
The appeal is against rejection of a refund claim filed by M/s. Oil & Natural Gas Corporation
Ltd. (ONGC for short), whose claim for refund of service tax of Rs. 32,64,75,333.96 was
rejected on numerous grounds by the Asstt. Commissioner of Service Tax, whose decision
was sustained by the Commissioner (Appeals). The claim of ONGC, which was filed on 6.8.07,
was for refund of the aforesaid amount of service tax paid by M/s. CGG Marine on 31.3.06
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and 16.5.06 on the taxable value of “survey and exploration of mineral” service rendered to
ONGC under three contracts between the companies, the first dated 22.9.04, the second
dated 23.11.05 and the third dated 21.2.06. Each contract was concluded between ONGC as
the first party and M/s. CGG Marine, a company incorporated in France under the relevant
French law, as the second party, referred to as the “contractor”. Under these contracts,
the contractor was required to undertake seismic survey in specific areas earmarked in the
Continental Shelf and Exclusive Economic Zone of India, beyond Indian territorial waters,
off the Western and Eastern Coasts. The purpose of such survey was to locate mineral
oil/natural gas beneath the seabed. The contractor was required to acquire the necessary
seismic data, process the same on board the vessel and store the same in tapes and supply
these tapes containing the necessary data to ONGC ashore. For such service, ONGC was
liable to pay a specific sum to the contractor. Accordingly, the contractor discharged their
obligation and ONGC paid for it. This happened during July, 2005 to April, 2006. Each of
the contracts contained a condition pertaining to payment of tax, as per which the service
tax was to be paid by the contractor and ONGC was liable to reimburse the same.
Accordingly, the contractor paid service tax on the taxable value of the service provided to
ONGC. The amount of service tax covered by the refund claim in question was paid partly
on 31.3.06 vide TR-6 challan 1/2006 and partly on 16.5.06 vide TR-6 challan 1/2006-07,
totalling to Rs. 32,64,75,333.96. Copies of both the TR-6 challans are available on record
and the same indicate that the payments were made “under protest”. The name and the
address of the assessee as shown in these documents read thus:-
SAPT Building Basement, 18, J.N.Heredia Marg,
Ballard Estate, Mumbai - 400 001.
2. M/s. CGG Marine ( the contractor) filed a refund claim on 23.4.2007 alongwith relevant
documents. ONGC filed the subject refund claim on 6.8.2007. This claim was filed in the
format prescribed under Rule 173 S of the Central Excise Rules, 1944. This refund
application of ONGC stated, in the opening paragraph thereof, that it was being filed “to
add, supplement and support the applications for refund already filed by the contractor”. In
this application, ONGC, however, claimed refund for themselves by stating that the service
tax paid by the contractor under protest had been reimbursed to them. ONGC further
stated that the levy of service tax from the contractor was purportedly under
Sec.65(105)(zzv) of the Finance Act, 1994. After referring to Circular No.36/4/2001-CX
dated 8.10.2001 issued by the CBEC, ONGC, in their refund application, contended that the
service provided to them by the contractor was not subject to levy of service tax under the
Finance Act, 1994 as the service was rendered beyond the territorial waters of India. They
also relied on the Taxation of Services (Provided from outside India and Received in India)
Rules, 2006. They further contended that, in any case, the service was not liable to be
taxed in India by virtue of the exemption from payment of service tax on export of
services under the Export of Services Rules, 2005.
3. Upon receipt of the refund claim, the Asstt.Commissioner issued show-cause notice dated
22.8.2007 to ONGC calling upon them to show cause why the claim should not be rejected as
inadmissible under sub-section (2) of Sec.11B of the Central Excise Act as made applicable
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to service tax under Sec.83 of the Finance Act, 1994. The grounds raised in the show-
cause notice for rejecting the refund claim were, to state briefly, as follows:-
(a) The taxable service was provided by the contractor to ONGC within the
designated area in Continental Shelf and Exclusive Economic Zone of India as
declared by Central Government by Notification No.1/02-ST dated 1.3.02 and,
therefore, the contention of ONGC that the service was received outside the
territory of India was untenable;
(b) A claim for refund of the same amount of service tax, filed by M/s. CGG Marine,
Mumbai on the basis of the same TR-6 challans is also pending and no documentary
evidence of reimbursement of the amount by ONGC to the other company has been
(c) No details of any utilization of CENVAT credit of the service tax in question
have been furnished in support of the claim for refund of the tax;
(d) M/s. CGG Marine, Mumbai neither challenged the service tax assessment nor
requested for provisional assessment. The assessment attained finality and the
same could not be challenged by way of filing refund claim;
(e) No documentary evidence has been furnished to establish that the amount of
service tax which is claimed as refund has not been collected from any other person.
Hence sanction of the refund claim would result in unjust enrichment.
4. ONGC contested the above show-cause notice. In their reply, the averments already
made in the refund claim were, by and large, reiterated. They sought to establish that no
service tax was leviable on the activity undertaken by M/s. CGG Marine beyond the
territorial waters of India. The benefit of the Export of Services Rules, 2005 was also
claimed. It was also contended that, as the service provider deposited the service tax
amount “under protest” and the tax burden was borne by ONGC through reimbursement of
the amount to the service provider, the refund claim was liable to be sanctioned without the
bar of unjust enrichment. In this connection, it was also claimed that the burden of service
tax was not passed on to any other person by ONGC and hence there was no question of
their refund claim being hit by unjust enrichment.
5. In adjudication of the dispute, the Asstt.Commissioner rejected the claim under Sec.11B
of the Central Excise Act read with Sec.83 of the Finance Act, 1994, after holding that
the service was provided to ONGC within the Indian territorial waters, that the benefit of
the Export of Services Rules, 2005 was not admissible to them and that the service tax was
properly paid by M/s. CGG Marine, Mumbai as agent/branch of M/s. CGG Marine ( France)
and was not refundable. Aggrieved, ONGC preferred an appeal to the
Commissioner(Appeals) but without any success. The present appeal is directed against the
appellate Commissioner’s order.
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6. Like the original authority, the appellate authority also held that ONGC had not been able
to prove satisfactorily that the service in question was received in non-designated areas of
Continental Shelf and Exclusive Economic Zone and beyond the territorial waters of India.
The appellate authority further observed that the whole of the service provided by M/s.
CGG Marine to ONGC should be treated as provided in India in terms of Rule 3 (ii) of the
Taxation of Services (Provided From Outside India And Received In India) Rules, 2006.
The appellate authority did not accept the plea that the service tax had been paid under
protest. It also noted that no documents had been produced by ONGC to show that the
incidence of tax had not been passed on to any other person.
7. The grounds of this appeal are a replica of the contentions raised by ONGC in their
refund claim and reply to show-cause notice.
8. Heard both sides. The ld.counsel for the appellant has endeavoured to show that the
marine areas where the contractor conducted seismic survey did not fall within the areas
designated by the Central Government under the Territorial Waters, Continental Shelf and
Exclusive Economic Zone And Other Maritime Zones Act, 1996 ( hereinafter referred to as
Maritime Zones Act) for the purpose of levy of service tax. As part of this endeavour, the
ld. counsel has moved a Misc. application, which is also before us today. This application,
purportedly filed under Rule 23 of the CESTAT (Procedure) Rules, seeks leave for bringing
on record what appear to be xerox copies of a few maps. It is submitted that the limited
purpose of producing these documents is to enlarge and clarify certain small maps appended
to the contracts. Some of these maps are said to be maps of areas of seismic survey
beyond the territorial waters of the western coast. One of these documents is said to be a
similar map showing seismic survey area beyond the territorial waters of the eastern coast.
Each map shows a set of longitudes and latitudes. The ld.counsel submits that these maps
will show that the survey sites were not within the designated areas and hence the
documents are necessary for this case. The ld.Jt.CDR has opposed this plea by submitting
that these documents are not relevant to the issue in hand. We have considered the
submissions of both sides. Admittedly, these maps are only enlargements of certain
maps/drawings appended to the contracts. We have examined the relevant appendices to
the contracts and have found them to be not useful for determination of the issue in hand.
If those are not relevant, these enlarged versions produced by the appellant are equally so.
We have also noted that these maps are not authenticated by the competent authority.
The misc. application is rejected.
9. On the merits of the appellant’s case as made out in the appeal, the ld.counsel has made
elaborate submissions with reference to the location of the sites of seismic survey. It is
submitted that the department is yet to show that these sites are within the areas
designated by the Government for purposes of Chapter V of the Finance Act, 1994. In this
connection, he has referred to the relevant Notifications issued under the Maritime Zones
Act. Notification No.1/02-ST dated 1.3.02 issued by the Central Government under the
above Act extended the provisions of Chapter V of the Finance Act, 1994 to certain
designated areas in the Continental Shelf and Exclusive Economic Zone of India as declared
by Notifications No.429(E) dated 18.7.86 and No.643(E) dated 19.9.96. The ld.counsel has
invited our attention to the designated areas declared by the Central Government under
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Notifications No.429(E) and No.643(E) ibid. He submits that the seismic survey was not
performed within the limits of the latitudes and longitudes specified in any of these
notifications. It is, therefore, contended that the service in question was provided by
M/s.CGG Marine to ONGC not only beyond the territory of India but also outside the areas
designated by the Central Government under the Maritime Zones Act. Notification
No.14/2010-ST dated 27.2.10 referred to by the ld.counsel was also issued by the Central
Government under the above Act and the same extended the provisions of Chapter V of the
Finance Act, 1994 to the whole of the Continental Shelf and Exclusive Economic Zone.
While conceding that services of the kind provided by CGG Marine could be subject to levy
of service tax by virtue of the notification dated 27.2.2010, the ld.counsel submits that
such levy could only be prospective. In other words, the Revenue cannot claim support from
Notification No.14/10-ST ibid, which did not have retrospective operation.
10. Though, in this appeal, there is an alternative plea based on the Export of Services
Rules, 2005, the ld.counsel has not pressed it.
11. However, the ld.counsel has contended that the refund claim in question cannot be
rejected on the ground of unjust enrichment. The bar of unjust enrichment is not
applicable to PSUs like ONGC. In this connection, the ld.ounsel relied on Commissioner vs.
Karnataka State Agrocorn Products Ltd. 2006 (202) ELT 47 (Kar.) and also on
Commissioner vs. Power Grid Corporation of India Ltd. 2008 (223) ELT 661 (Tri-Bang). It is
also submitted that the service tax paid by M/s. CGG Marine was reimbursed to them by
ONGC, whereby the latter acquired the right to claim refund under Sec.11B of the Central
Excise Act. It is further submitted that ONGC, being the service recipient, did not have
any other person for passing the burden of tax to. Yet another argument is that, as the tax
was paid under protest, the claim for its refund cannot be barred by unjust enrichment. In
this, support is sought from SAIL vs Commissioner 2008 (230)E.L.T. 647 (Tri-Kol.)
12. The ld. counsel has also reiterated the appellant’s grievance that their case was not
properly considered by either of the authorities below. It is submitted that it was without
applying his mind to the maps and drawings produced by the party that the ld.
Commissioner(Appeals) took the view that the seismic survey was conducted within the
Indian territorial waters.
13. For contra, the ld.Jt.CDR has argued that, as both the service provider and the service
recipient were in India during the material period and the benefit of the service in the form
of 3D tape (containing seismic data) was received within the Indian territory by ONGC,
service tax was leviable on the consideration paid by ONGC to the service provider in
terms of the relevant statutory provisions as well as in terms of the contracts. In this
connection, he has referred to Sections 65, 66 and 67 of the Finance Act, 1994. It has
been argued that the service in question ( survey and exploration of mineral) can be said to
have been provided by M/s. CGG Marine to ONGC only when the survey results, duly
processed and recorded in 3D tape, are delivered to ONGC (service recipient). The tape
was delivered to ONGC in India, a fact not in dispute. Therefore, according to Jt.CDR, M/s.
CGG Marine should be held to have provided the above service to ONGC in India.
Therefore, the service is taxable under Sec.65(105)(zzv) of the Finance Act, 1994 read
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with Section 65 (104 a) of the Act. The service tax was actually paid by the service
provider as evidenced by the TR-6 challans. The ld.Jt.CDR points out that even the
challans prepared by the service provider indicate the assessee to be located in Mumbai and
not France. Further, M/s. CGG Marine, Mumbai are registered with the department as a
provider of taxable services in relation to “survey and exploration of mineral” as evidenced
by the relevant registration certificate dated 10.8.2005 (copy produced by Jt.CDR). Even
otherwise, according to Jt.CDR, the foreign company providing a taxable service in India
through its branch located in India should be held to be a service provider in India. Thus it
is argued that, in this case, the taxable service was provided in India by a person resident
in India to another person resident in India and, therefore, the payment of service tax by
M/s. CGG Marine is a levy of service tax falling within the ambit of Sec.66 of the Finance
Act, 1994. The Jt.CDR clarifies that this levy has nothing to do with the Notifications
issued by the Central Government under the Maritime Zones Act.
14. The ld.JCDR also contends that the refund claim without any challenge to the relevant
assessments is not maintainable. He relies on Priya Blue Industries Ltd. vs Commissioner
2004 (172) ELT 145 (S.C.) and Commissioner vs. Hotline CPT Ltd. 2005(179) ELT 313 (Tri-
Del.) In an apparent bid to preempt his learned opponent, the JCDR also refers to the
High Court’s decision in Maharashtra Cylinders Pvt.Ltd. vs CESTAT 2010 (259) E.L.T. 369
(Bom.) wherein it was held that self-assessment also could be challenged by the assessee by
15. As counter to Karnataka State Agrocorn Products (supra) cited by the ld.counsel, the
ld.JCDR reefers to Cement Corporation of India Ltd. vs Commissioner 2009 (15) STR 122
(Tri-Del.) wherein it was held that Section 11B of the Central Excise Act did not make any
distinction between a private enterprise and a Govt. enterprise in relation to applicability of
the doctrine of unjust enrichment. It is also pointed out that the Special Leave Petition
filed against the decision was dismissed by the Supreme Court vide 2008 (232) ELT A107
16. It has been further contended that the refund claim is time-barred. The service tax
was paid in March and May, 2006 but the refund claim was filed only on 6.8.2007, beyond
the normal period of limitation prescribed under Sec.11B of the Central Excise Act as
applicable to claim of refund of service tax vide Sec.83 of the Finance Act, 1994. It is
submitted that the appellant cannot get over time-bar by taking shelter under the factum
of the service provider having paid service tax under protest. The protest registered by
the service provider cannot be a protest for the service recipient. In this connection, the
ld.JCDR has relied upon the apex court’s judgment in Commissioner of C.Ex.,Mumbai.II vs.
Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.)]. He has particularly referred to
para 15 of the apex court’s judgment wherein an earlier decision of a Division Bench of the
court in the case of National Winder vs. Commissioner of Central Excise, Allahabad
[2003(154) E.L.T. 350 (S.C.)] was declared to be per incuriam. The view taken in the case
of National Winder was that, if a manufacturer paid duty under protest, then the limitation
of six months provided under Sec.11B of the Central Excise Act would not apply even to a
claim for refund of such duty by the purchaser of the goods. It was this view which was
held to be per incuriam in the case of Allied Photographics India Ltd. Therefore, according
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to Jt.CDR, the refund claim is liable to be rejected as time- barred. In this connection, it
has also been argued that the absence of specific mention of time-bar/limitation in the
show-cause notice cannot be fatal to the Revenue inasmuch as the notice clearly invoked
Sec.11B of the Central Excise Act and also contained specific mention of the dates of
payment of service tax as well as the date of the refund claim.
17. In the absence of evidence of reimbursement of the tax amount by ONGC to M/s. CGG
Marine, it is submitted that the claim filed by the ONGC is liable to be rejected. It is also
submitted that the appellant has not adduced any evidence against the bar of unjust
enrichment and hence their claim for refund of the service tax is liable to be rejected on
this ground as well.
18. In his rejoinder, the ld.counsel points out that many of the above arguments of the
ld.JCDR are beyond the scope of the show-cause notice and not liable to be entertained. He
further points out that M/s. CGG Marine have withdrawn their refund claim implying that
they received reimbursement of the service tax amount by ONGC. In support of this
submission, the ld.counsel has brought on record a copy of Order-in-Original No.83/2008
dated 10.4.2008 passed by the Asstt. Commissioner of Service Tax, Division I, Mumbai. This
order indicates that M/s. CGG Marine had filed two applications for refund, one for Rs.
7,44,40,257/- and the other for Rs. 32,64, 75,333/- and that the Asstt. Commissioner
rejected the first of these claims, after noting that “the assessee is seeking refund of
first refund claim of Rs. 7,44,40,257/- only”. According to the ld. counsel, it is evident from
this order that the other refund claim of M/s. CGG Marine for Rs. 32,64,75,333/- was not
pressed before the adjudicating authority. In answer to a query from the bench, the ld.
counsel submits that, if necessary, documentary evidence of reimbursement of the tax
amount by ONGC to M/s. CGG Marine can be produced. On his part, the ld.JCDR, submits
that, given an opportunity, the relevant averments contained in Order-in-Original
No.83/2008 relating to the service provider s refund claim of Rs. 32,64,75,333/- can be
verified and results thereof can be furnished to the bench. Neither of these suggestions is
acceptable at this stage. As we are inclined to remand this case, for which reasons will be
stated, it will be open to ONGC to produce the evidence ( if any) to the lower authority and
it will be open to the authority itself to undertake the verification, if need be.
19. It is necessary to address, at the outset, certain fundamental questions. There is no
provision in the Central Excise Act obligating the department to issue a show-cause notice
proposing to reject a refund claim filed under Sec.11B of the Act. There can be no doubt
that the refund claim in question was filed under Sec.11B of the Act. May be, this provision
was not expressly stated in the refund application. But the application was made in the
format prescribed under the erstwhile Rule 173 S. We are given to understand that the
same format continues to be in use. We have also perused the text of Rule 173 S. Sub-rule
(2) specifically provided that any application filed under the Rule shall be in accordance
with Sec.11B of the Central Excise Act. Therefore, it cannot be gainsaid that the refund
application was filed under Sec.11B of the Central Excise Act. As we have already
indicated, the Act nowhere makes it obligatory for the department to issue show-cause
notice upon receipt of refund claim filed under Sec.11B. The show-cause notice, in the
present case, is by and large in the nature of a counter to the various contentions raised in
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ONGC’s refund claim. Any reference to statutory provisions, Notifications or circulars in
the show-cause notice or non-mention of any particular provision of law therein cannot be
fatal to the Revenue.
20. What must fall for adjudication by the Asstt.Commissioner is the refund claim rather
than the show-cause notice. ONGC raised numerous contentions in their refund application.
The show-cause notice issued by the department made an attempt to rebut the contentions
raised by the claimant. Of course, it also proposed to reject the refund claim as
inadmissible under sub-section (2) of Sec.11B of the Central Excise Act. In the refund
application, the party contended, inter alia, that the seismic survey was conducted outside
the territory of India and hence no service tax was leviable in relation thereto. The
adjudicating authority ought to have taken the cue from this case of the party and to have
made an endeavour to make out a case for the Revenue based on the basic statutory
provisions. Unfortunately, in this case, this did not happen. The original authority’s attempt
was to show that the seismic survey was conducted by M/s. CGG Marine within areas
specifically designated by the Central Government under the Notifications issued under the
Maritime Zones Act. The adjudicating authority was, apparently, completely oblivious of the
basic facts of the case and the fundamental provisions of law. A crucial before the
authority was that the survey was conducted by a French company which had its office in
Mumbai and that the said company paid service tax through the Mumbai office on the
amounts collected by them from ONGC. The fact that the company, through the Mumbai
office, was registered with the Central Excise authorities was also not unknown to the
Asstt.Commissioner. That the service recipient (ONGC) was resident/situate in Indian
territory was also a fact known to the Asstt.Commissioner. The fact that ONGC received
3D tape containing seismic data in India was also available to the Asstt.Commissioner. Prima
facie, these facts were enough for him to decide on the question whether the service was
provided in India by a person located in India to another person located in India. The
Asstt.Commissioner ought to have considered all these facts in the light of the charging
provisions of Chapter V of the Finance Act, 1994. In other words, he should have
determined the question of leviability of service tax in this case on first principles, in which
function he was not fettered by anything contained in the show-cause notice. This is
because what required to be adjudicated upon under Section 11B was not the show-cause
notice but the refund claim.
21. In doing so, an adjudicating authority has first, to determine the leviability of service
tax in the case in hand unless the liability has been admitted. In the second place, it has to
see whether the claim for refund of service tax paid by the claimant is within the period of
limitation prescribed under sec.11B of the Act. Thirdly, it has to determine whether the
claim is barred by unjust enrichment or not. In the instant case, ONGC denied service tax
liability in their application for refund, on certain grounds. As we have already indicated,
the adjudicating authority just rejected those grounds and held that service tax was
leviable and correctly levied on the amount paid by ONGC to M/s. CGG Marine for the
service provided by the latter. It was so held on the basis of Notifications issued by the
Central Government under the Maritime Zones Act without regard to the charging
provisions under the Finance Act, 1994. This is where the original authority fundamentally
erred in this case. Further, though the authority was required to ascertain, under Sec. 11B
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of the Act, whether the refund claim was barred by limitation and unjust enrichment, the
Asstt. Commissioner did not even attempt to examine whether the refund claim was time-
barred or not. The mere fact that “limitation” was not expressly mentioned in the show-
cause notice did not preclude the authority from examining whether the refund claim was
time-barred or not, which was a mandatory requirement under Sec.11B of the Act.
22. As regards unjust enrichment, we find that ONGC did not furnish any documents to
show that the burden of service tax had not been passed on to any other person.
Therefore, justifiably, the Asstt.Commissioner held the refund claim to be barred by unjust
enrichment. Yet another ground raised in the show-cause notice was that any particulars of
utilization of CENVAT credit had not been furnished by the claimant. Any utilization of
CENVAT credit of the service tax in question by ONGC for payment of duty of excise on
their excisable products or for payment of service tax on any output service would also be
relevant to the question whether the service tax burden was passed on to any other person.
Apparently, the Asstt.Commissioner did not attempt any study on this aspect. The
ld.Commissioner(Appeals) chose to affirm the views of the Asstt.Commissioner without
independent application of mind.
23. We have already referred to Order-in-Original No.83/2008 dated 8.4.2008 passed by
the Asstt. Commissioner of Service Tax, Division I, Mumbai in relation to certain refund
applications filed by M/s. CGG Veritas / M/s. CGG Marine/CGG Services . We are told by
the ld.counsel that Order-in-Original No. 83/2008 ibid pertains to refund claims filed by
the service provider in the instant case, namely M/s. CGG Marine. From the said Order-in-
Original, it appears that two refund applications of M/s. CGG Marine were considered by
the Asstt.Commissioner, one for Rs. 7,44,40,257/- and the other for Rs. 32,64,75,333/-.
The Asstt.Commissioner rejected the first claim of M/s. CGG Marine under Sec.11B of the
Act read with Sec.83 of the Finance Act, 1994. There is no discussion in his order in
relation to the second claim. However, in para 2(b) of his order, the Asstt.Commissioner
noted that the assessee (M/s. CGG Marine) was seeking refund of Rs. 7,44,40,257/- only
and that ONGC’s claim for refund of Rs. 32,64,75,333/- had been rejected by his
predecessor- in- office vide Order-in-Original No.23/08 dated 23.1.08, which is part of this
case. A doubt still lingers as to what happened actually to the refund claim of M/s. CGG
Marine for Rs. 32,64,75,333/-. Was that claim withdrawn by the claimant ? Or, is it still
pending with the Asstt.Commissioner ? Answers to these questions must necessarily have
bearing on one crucial question of fact which is involved in the present case and has to be
considered inter alia by the Asstt.Commissiioner pursuant to this order. That crucial
question of fact is whether the service tax amount was, in fact, reimbursed by ONGC to
M/s. CGG Marine. Nowhere in the present records is there any mention of the date or
other particulars of such reimbursement, apart from a bold averment that the amount was
reimbursed. This is not enough. Before proceeding to deal with ONGC’s refund claim, the
Asstt.Commissioner has to satisfy himself that the service tax amount of Rs.
32,64,75,333/- paid by M/s. CGG Marine was, in fact, reimbursed to them by ONGC. If, in
fact, there was no such reimbursement of the amount by ONGC, the Corporation cannot
claim any refund of the tax under Sec.11B of the Act. It is for the appellant to establish
that the aforesaid amount was, in fact, reimbursed by them to M/s. CGG Marine, which is a
pre-requisite for the Asstt.Commissioner to take up ONGC’s refund claim for consideration.
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24. Those decisions cited before us which are relevant to the issues to be settled by the
adjudicating authority will have to be considered by that authority.
25. For all the aforesaid reasons, we have found this case to be fit for remand to the
original authority. Accordingly, we set aside the orders of the lower authorities and allow
this appeal by way of remand to the Asstt.Commissioner for fresh adjudication of the
refund claim in accordance with law and having regard to the relevant observations
contained herein, after giving the claimant a reasonable opportunity of adducing
documentary evidence and of being personally heard.
26. The counsel for the appellant, at this stage, prays that the Asstt.Commissioner be
directed to dispose of the matter within a time frame. The JCDR has no objection. In the
circumstances of this case, we are also of the view that the case should be disposed of
without unreasonable delay. The Asstt. Commissioner is directed to pass final order within
six months from the date of receipt of a certified copy of this order.
27. The appeal is allowed by way of remand.
(Pronounced in court)
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