Custom, Excise & Service Tax Tribunal Beml Limited vs Commissioner Of Central Tax, Bengaluru ... on 23 March, 2022 Service Tax appeal No.20058 of 2020 CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL BANGALORE REGIONAL BENCH COURT NO. 1 Service Tax Appeal No. 20058 of 2020 [Arising out of OrderinAppeal No. 305/2019 dated 07/11/2019 passed by Commissioner of Central Tax , BANGALOREI( Appeal) ] BEML Limited KGF Complex, BEML Nagar Kolar Gold Fields Appellant(s) KOLAR KARNATAKA 563115 VERSUS Commissioner Of Central Tax, Bengaluru East BMTC BUILDING OLD AIRPORT ROAD, DOMLUR, Respondent(s) BANGALORE KARNATAKA 560071 Appearance: Shri M. Karthikeyan, Advocate For the Appellant Shri K.B. Nanaiah, Asst. Commissioner(AR) for the Respondent HON'BLE SHRI P DINESHA, JUDICIAL MEMBER Final Order No. 20101 /2022 Date of Hearing: 21/02/2022 Date of Decision:23/03/2022 Per : P DINESHA The only issue to be decided in this appeal is, whether the authorities below were correct in rejecting the refund claim of the appellant? 1 Service Tax appeal No.20058 of 2020 2.1. The appellant is a PSU, the Ministry of Defence (MOD) had entered in to a contract with the appellant (dt. 24.03.2004) for supply of 228 Nos. of Armoured Recovery Vehicles (ARVs for short) and the appellant in turn entered into an agreement on 30.03.2004 with the foreign supplier M/s. FTF Bumar Ltd., Poland (Bumar for short), for the supply of ARVs which was later on supplied to MOD. Appellant's responsibilities, in terms of the contract, was to provide various services to Bumar to facilitate execution of the contract, including testing, inspection, certification, warranty, maintenance, etc. for which Bumar would pay 10% of the value of engine to the appellant, as coordination expenses. 2.2. Appellant had raised two debit notes in this regard, which according to the appellant was towards export of services and hence would not attract any levy under service tax. But since the appellant had paid the service tax, inadvertently, it accordingly made a refund claim on 04.8.2008 claiming refund of Rs. 20,65,822/. The Assistant Commissioner issued a showcause notice proposing to deny the refund claim made by the appellant. After due process, Orderinoriginal dated 31.01.2011 was passed where by Appellant's refund claim was rejected on various grounds. Thereafter, the appellant preferred an appeal before the Commissioner of Central Excise (Appeals), who vide OrderinAppeal 2 Service Tax appeal No.20058 of 2020 No.1223/2017 dated 02.11.2017, found it appropriate to remand and hence, remanded the matter back to the file of adjudicating authority, with directions. With regard to the objection of the AA that the ARVs in question were covered under S. 65(9) of the Finance Act, 1994, the Commissioner (A) had clearly held that ARVs are heavy vehicles and hence not covered by S. 65(9) ibid. and hence, there was no ST liability. Regarding technical and procedural grounds contained in the OIO, it was held in the OIA that the same were not substantive, but a mere lapse. 2.3. The above order of the Commissioner (A) has been accepted by both the appellant and the Department as well, with none of them preferring any appeal against the same. Hence, prima facie, the findings in the said order has become final insofar as the appellant and the department are concerned. 2.4. In terms and as per the directions of the said order of the Commissioner (A), the adjudicating authority issued a notice to the appellant and heard the appellant. Thereafter, the AA passed a denovo Order where by the appellant's refund was again rejected. Seriously aggrieved, the appellant preferred an appeal before the first appellant authority, who vide impugned OrderinAppeal has rejected the appeal thereby confirming the rejection of refund claim as made by the Adjudicating authority. 3 Service Tax appeal No.20058 of 2020 2.5. In terms of the said contract, appellant had received a certain amount, out of which 10% was understood to be towar