Page 93 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] COMMR. OF CGST v. BHARAT MUMBAI CONTAINER TERMINALS P. LTD. 179
8. The issue of whether any claim for refund has been preferred by the
two sub-contractors who included the tax in the invoice raised on the respondent
herein or had availed benefits is, in our opinion, too vague on allegation to be
raised at this juncture. There is no essaying of any facts, or even speculation, on
the nature, and extent, of benefits that could be availed. The Tribunal is not to be
expected to either undertake an enquiry, or direct any of the lower authorities to
proceed in that direction merely on the basis of apprehensions entertained by the
Committee of Commissioners.
9. Appropriately, a responsible approach on the part of the Committee
would have been to enunciate some facts that could reasonably lead to such con-
clusion. In the absence thereof, this ground is not tenable. In fact, the apprehen-
sion that appears to have led by the Committee on that path is apparent from
reference to the amount involved in the refund, superfluous though it be. The
withdrawal of the exemption for a limited period was considered to be crucial
enough for reconsideration and it is with full authority of Parliament that the
exemption was not only restored but refund of amount already paid legislated
upon. Notwithstanding this enactment by this supreme legislative organ of the
State, innate caution of the executive appears to have asserted itself.
10. The appellant appears to be apprehensive that the accounting
treatment of the tax, under claim for refund, and the consequence of capitalisa-
tion of this amount would enable availment of benefit of depreciation which
would be passed on as cost to customers. It has been brought to our notice by
Learned Chartered Accountant that the response to the objection on the claim for
refund is not necessarily a correct or proper reflection of the treatment accorded
by the respondent. It was submitted that there has been no amortisation, or capi-
talisation, of the said amount and, on the contrary, as held by the first appellate
authority, the refund amount is reflected in the books of account as ‘dues from
the Government of service tax refund receivable’ within the category of ‘Ad-
vance-Capital Creditors’. It was also clarified that the suggested accountal is
nothing but a statement of intent of amortisation upon commencement of com-
mercial operation. Commencement of commercial operation took place only in
March, 2018 and, hence, in view of the refund claim having been filed, the amor-
tisation had not been taken place. Therefore the apprehension of amortisation, or
any other downstream benefit of capitalisation, will not arise.
11. Furthermore, it must be noted that under the scheme of operation
of major ports, it is the Tariff Authority on Major Ports (TAMP) which deter-
mines that actual rates chargeable from customers and, in the computation of
such chargeable amount, adequate safeguards exist for excluding amount that
are not costs; the charges are invariably computed on ‘cost plus’ and hence the
inclusion of the amount under the relevant head of expenses. In view of our
above finding on the absence of tenability of the grounds of appeal and the clear
finding of having borne the incidence of tax, we find no reason to interfere with
the orders of lower authorities. Accordingly, appeal is dismissed.
(Operative part pronounced in Court)

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GST LAW TIMES  11th June 2020  93