- (1.) This appeal by the revenue arises from the decision of the CESTAT dated 9 December 2013 on an appeal by the assessee. The appeal of the assessee having been allowed, the refund claim of the assessee in respect of certain tax amounting to Rs.16,99,714/- under Section 11B of the Central Excise Act, 1944 has been granted. The revenue has raised two questions of law in the appeal, which read as follows: "I. Whether the Hon'ble CESTAT has erred in allowing the refund, without considering provisions of limitation provided in Section 11B of the Central Excise Act, 1944? II. Whether the Hon'ble CESTAT has erred in allowing the refund, without considering provisions of unjust enrichment provided in Section 11B of the Central Excise Act, 1944? The assessee purchased natural gas through a pipeline from Reliance Gas Transportation Infrastructure Ltd. (RGTIL). The transmission charges payable by the assessee to RGTIL were fixed by a statutory body, namely the Petroleum & Natural Gas Regulatory Board. Between April 2009 and May 2010, RGTIL had provided to the assessee a taxable service under Section 65(105)(zzz) of the Finance Act, 1994. Invoices were raised by RGTIL upon the assessee on the basis of the tariff which was initially notified by the statutory board. Subsequently the initial tariff was subjected to downward revision by the statutory board. RGTIL had, however, in the meantime collected excess transmission charges from the assessee for the supply of natural gas. The difference was credited by RGTIL to the account of the assessee by raising credit notes. Tax had been initially remitted by RGTIL on the basis of the original tariff fixed by the board. Since the tariff had been revised downward, the assessee applied for the refund of a proportionate part of the service tax remitted by RGTIL and which was borne by the assessee. The taxable service in question was "transport of goods other than water through pipeline and other conduit".
(2.) Initially, by an order dated 5 April 2011, the Assistant Commissioner, Service Tax Division-V rejected the refund application on the ground that the application should have been made to the Commissionerate within whose jurisdiction the applicant operated.
(3.) The claim was thereafter preferred to the Assistant Commissioner, Bareilly. On 23 December 2011, the Assistant Commissioner, Bareilly sanctioned the refund. However, an appeal was filed by the revenue which was allowed by the Commissioner (Appeals), Meerut on 16 April 2012. The Commissioner (Appeals) reversed the order of the adjudicating authority only on the ground that the refund claim was filed by the recipient of the service and not by the service provider and that the expression "any person" in Section 11B of the Central Excise Act, 1944 does not include the recipient of the service. The assessee filed an appeal before the Tribunal. The Tribunal by the impugned judgement and order dated 5 December 2013 followed the decision of a Constitution Bench of the Supreme Court in Mafatlal Industries Ltd. vs. Union of India, 1997 89 ELT 247 and held that the claim for refund of excess service tax paid was maintainable at the behest of the assessee who had borne the burden of the service tax. Consequently, the Tribunal was of the view that upon the downward revision of the transmission charges payable by the assessee to RGTIL in terms of the determination made by the statutory board, the assessee was entitled to maintain the refund application. The appeal was accordingly allowed and the order of the Commissioner (Appeals) was set aside.;