Service recipient can file refund claim

Service recipient can file refund claim if burden of tax is borne by it

[2014] 48 taxmann.com 143 (New Delhi - CESTAT)

CESTAT, NEW DELHI BENCH

Indian Farmer Fertiliser Co-operative Ltd.

v.

Commissioner of Central Excise, Meerut-II

Section 11B of the Central Excise Act, 1944 read with sections 65(105)(zzz) and 83 of the Finance Act, 1994 and section 27 of the Customs Act, 1962 - Refund - General - Period from April 2009 to May 2010 - Assessee, a service recipient, received services of transport of natural gas from RGTIL falling under 'Transport of Goods other than Water through Pipeline or other Conduit Services' - Initially, charges and service tax were recovered on basis of provisional prices but Petroleum & Natural Gas Regulatory Board revised said prices downward resulting in excess payment of service tax - Assessee applied for refund of excess service tax but Commissioner (Appeals) denied refund on ground service recipient cannot file refund claim under section 11B - HELD : It was held by Constitution Bench of Supreme Court in Mafatlal Industries Ltd. v. Union of India 1997 (89) ELT 247 that section 11B does provide for a purchaser presenting a claim for refund, provided he is able to establish that he has not passed on burden to another person - Hence, assessee, being service recipient, was entitled to claim of refund of service tax borne by him [Paras 6 & 7] [In favour of assessee]