The Customs Excise and Service Tax Appellate Tribunal (CESTAT), Chandigarh, ruled that as the appellant, an ambulatory care provider, has failed to produce any evidence to show that they are the buyers or owners or the consumers of the vehicles (ambulance) who have borne the incidence of duty and have not passed on to others, they have no locus standi to claim the refund of the excise duty paid by the fabricators of the ambulance.
The Tribunal pointed out that the MOU entered into with the Government of Karnataka did not recognise the appellants as owners of the Vehicles, and it only required the appellant to maintain, upkeep and ply the ambulances as and when required.
Finding that the Government of Karnataka has sanctioned certain amount for the running of the scheme and there is no mention of the reimbursement of taxes, if any, paid by the appellant, the Tribunal strongly asserted that when the appellant has undertaken the activity as per MOU or as part of Corporate Social Responsibility, they cannot enrich themselves at the cost of the Government.
The Tribunal also emphasised that the Central Excise Law recognises the manufacturer for the purposes of payment of duty, and on the other hand, recognises the purchaser of the vehicles for the purposes of the refund, whereas, in the present case, the appellant is not established to be either of them; he is not even a consumer.
The Division Bench comprising S S Garg (Judicial Member) and P Anjani Kumar (Technical Member) observed that the appellant is not a manufacturer or a buyer of the impugned goods, the differential duty paid on which, the appellant seeks to claim as a refund, as neither the vehicles are registered in their names, nor are they the owners of the vehicles.
Rather, the Bench found that no invoice or any document that can be recognised or correlated with the scheme of Refund under the Central Excise Act was produced by the appellant, and the appellant has signed a memorandum of understanding (MOU) with the Government of Karnataka to run the ambulances under the Arogya Kavacha scheme.
Briefly, the appellants have signed an MOU with the Government of Karnataka as a partner to run the ambulance service named “Arogya Kavacha”, for which the appellant provided management, research, and technology, and the Govt of Karnataka was to meet 100% of the operating expenditure with full capital investment. When the appellant ordered the supply of vehicles from manufacturers on behalf of the State government, which, on clearance and after payment of Central Excise duty, were sent to the fabricator M/s Bafna Healthcare Private Limited [BHPL].
The Revenue Department took the view that such fabrication of ambulances amounted to manufacture and, therefore, BHPL was required to pay central excise duty of Rs. 1.64 crores, which, they (BHPL) paid under protest. The appellant, therefore, filed a refund claim of the duty so paid, but the same was rejected on the ground that the notification 6/2006-CX envisages a refund only to the manufacturer.
Appearances:
NA, for the Appellant/ Taxpayer
Anurag Kumar and Amita Gupta, for the Respondent/ Revenue
