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Finance Bill, 2014 enacted into Finance Act, 2014, Date of Enactment 06.08.2014Budget 2014-15 : Sale of space for advertising has been made taxable except for print media.Budget 2014-15 : Radio Taxis are now taxable.Budget 2014-15 : Education : The definition of Auxiliary Education Services has been scraped.Budget 2014-15 : Works Contract : 2 slab rates prescribed in place of earlier 3 slabs.Budget 2014-15 : E-payment of Service tax is being made mandatory with effect from 01.10.2014.Budget 2014-15 : POPS: Definition of intermediary is being amended to include the intermediary of goods in its scope.

Service Tax Refund
Landmark Service Tax Judgment - Service Tax Refund
Service Tax Refund 
In a case where an assessee makes payment of Service Tax more than what was due to him, he has two alternatives. (1) He may adjust such excess payments against his future Service Tax liability or (2) he may claim refund of Service Tax paid.
 
(1) Self Adjustment of Service Tax Paid :

Where an assessee has paid to the credit of Central Government any amount in excess of the amount required to be paid towards Service Tax liability for a month or quarter, he may adjust such excess amount paid by him against his Service Tax liability for the succeeding month or quarter. [ Please Refer : Rule 6(4A), Service Tax Rules, 1994. ]

The Conditions for Self-adjustment of Excess amount of Service Tax paid :

(i) Excess Service Tax paid is on account of reasons not involving interpretation of law, taxability, classification, valuation or applicability of any exemption notification, 

(ii) Excess Service Tax amount paid by an assessee having Centralised Registration [Rule 4(2), Service Tax Rules, 1994. ] on account of delayed receipt of details of payments towards Taxable services may be adjusted without monetary limit. 

(iii) In cases other than specified in clause (ii) above, the excess amount of Service Tax paid may be adjusted with a monetary limit of Rs. 1,00,000/- (one lakh) for a relevant month or quarter. 

 

(iv) The details and reasons for such adjustment shall be intimated to the jurisdictional Superintendent of Central Excise within a period of 15(fifteen) days from the date of such adjustment.  

 

[ Please Refer : Rule 6(4B), Service Tax Rules, 1994. ]
Adjustment in case of Renting of Immovable Property :
Where the person providing Taxable service in respect of renting of immovable property [Section 65(105)(zzzz)] has paid excess amount towards Service Tax liability for a month or quarter, on account of non-availment of deduction of property Tax paid from the gross amount charged for renting of the immovable property for the said period at the time of payment of Service Tax. The assessee may adjust such excess amount paid by him against his Service Tax liability within 1(one) year from the date of payment of such property Tax. The details of adjustment shall be intimated to the Superintendent of Central Excise within a period of 15(fifteen) days from the date of such adjustment.  [ Please Refer : Notification No.24/2007-ST; Rule 6(4C), Service Tax Rules, 1994. ]
Adjustment in case if Service is not provided fully :
Where an assessee has paid Service Tax in respect of a Taxable service, which is not provided by him, either wholly or partially for any reason, the assessee may adjust the excess Service Tax so paid by him (calculated on a pro-rata basis) against his Service Tax liability for the subsequent period, only, if the assessee has refunded the value of Taxable service and the Service Tax to the person from whom it was received  [ Please Refer : Rule 6(3), Service Tax Rules, 1994. ]
 
(2) Refund of Service Tax :

In cases of excess payment, where self-adjustment is not permissible refund claims have to be filed with the Department. The refund claims would be dealt as per the provisions of Section 11B of the Central Excise Act, 1944, which is made applicable to Service Tax u/s 83 of the Finance Act, 1994. 

[ Please Refer : Section 11B, Central Excise Act, 1944; Section 83, Finance Act, 1994. ] 

 

Any amount of Service Tax paid in excess of the actual liability, is refundable, only if it is proved that the claimant of refund had already refunded such amount to the person from whom it was received or had not collected at all from any one.
Procedure for claiming refund:
Application in the prescribed form (Form - R) is to be filed in triplicate with the jurisdictional Assistant/Deputy Commissioner of Central Excise/Service Tax.

The application should be filed within 1 year from the relevant date as prescribed in Section 11B of the Central Excise Act, 1944 which has been made applicable to Service Tax refund matters also
Application should be accompanied by documentary evidence to the effect that the amount claimed as refund is the amount actually paid by him in excess of the Service Tax due and the incidence of such Tax claimed as refund has not been passed on to any other person.
‘Relevant Date’ for filing refund claims :
The “relevant date” for the purpose of limitation period in respect of refund claim has been explained in Section 11B of the Central Excise Act, 1944 which is applicable to Service Tax is:
SITUATION RELEVANT DATE
Generally Date of Payment
Provisional Assessment Date of Final Assessment
For Recipient of Service Date of purchase of service
Rectification of Mistake Date on which rectification order is passed
Exemption Notification Date of Publication in the official gazette
Interest for delayed payment of refunds :

If delay in refund of Service Tax is for more than 3 months from the date of receipt of refund application, Interest is paid by the Government at the rate not below five per cent and not exceeding thirty per cent per annum. [Please Refer : Section 11BB of Central Excise Act, 1944.]

At Present : Simple interest @ 6% p.a. is granted on delayed refunds. 

 

Case Laws Related

  • STO 2014 CESTAT 23
  • Service Tax: Refund: Invoices issued by the CHA does not have an endorsement of the shipping and invoice number: Scope: The adjudication order where refund claim is sanctioned, there is a clear cut finding of the Adjudicating Authority that the service has been received and used for export of goods and same can be seen from the co-relation between the event of export, export invoice bills, service providers bills, and shipping documents. As these documents were in relation to export and examined by the Adjudicating Authority while considering the refund claim, therefore, the finding of the Id. Commissioner (Appeals) are contrary to the facts of the case. Therefore impugned order does not sustain in the eyes of law.(Para 5).

    Appeal allowed.

  • STO 2013 CESTAT 1300
  • Refund: Services used for export of goods: Notification No. 41/2007-ST : Appellant is eligible for the benefit of refund claim filed under Notification No. 41/2007 as amended by Notification No. 17/2007 and the time bar aspect is not attracted.

  • STO 2013 CESTAT 1299
  • Refund: Services used for export of goods: Notfn.No.41/2007: If the services received are notified in Notification No.41/2007-ST, the benefit of refund would be available.

  • STO 2013 CESTAT 1296
  • Refund: Consequent upon Tribunal’s Order: In the refund claim appellants struck off the clause relating to passing on the incidence to another person: Refund rightly rejected.

  • STO 2013 CESTAT 1290
  • Refund: Service Tax paid on Services received prior to 18.04.2006: Prior to 18-04-2006 when 66A was introduced the only issue was that the Rule under which the tax was collected was considered to be not authorized by provisions in Finance Act, 1994. So the levy has to considered only as "without authority of" and not as "unconstitutional". So the decision of the Apex Court in para 70 in the case of Mafatalal Industries Ltd. (being the majority view) should apply: Refund not Admissible: Revenue appeal allowed.

  • STO 2013 CESTAT 1168
  • Refund: Port Charges: Royalty charges refund denied on the ground that it has no connection with the Port Charges: When the department has accepted service tax on these amounts under port services, at the time of considering refund of the service tax paid on port services to the service recipient, the Jurisdictional Central Excise authorities cannot seek to reopen the assessment of service tax at the end of the service provider.

  • STO 2013 CESTAT 1041
  • Refund: During the period the input services were availed in respect of which refund is sought by the appellants, appellants were not registered with the Department and the refund was rejected on this ground only: Following precedent decision refund held admissible.

  • STO 2013 CESTAT 1456
  • Cenvat Credit: Input Service: Refund: If there is service tax liability which has been discharged by the service tax provider and collected from the appellant and if the premises are used by the appellant for rendering output services.

  • STO 2013 CESTAT 1075
  • Refund: Goods Supplied to 100% EOU: In the case of rebate and refunds on exports the policy of the government has been to grant such benefits when goods are supplied to SEZ. The same logic should apply for supply to EOUs also.

  • STO 2013 CESTAT 1278
  • Cenvat Credit: Refund: Refund cannot be refused for the reason that the respondent had not taken registration before taking cenvat credit.

  • STO 2013 CESTAT 1162
  • Refund: Commissioner (Appeals) holding that provisions of Section 11B of the Central Excise Act, 1944 not applicable when duty not payable: Status Quo directed to be maintained in giving consequential relief: Departmental stay application allowed.

  • STO 2013 CESTAT 775
  • Refund: Provisions of limitation applicable to refund of tax paid without the authority of law.

  • STO 2013 CESTAT 839
  • Refund: Services used for export: Education cess is also refundable: Even if there are short-comings in the documents issued by the courier agency, the same can be made good by verifying the payment of tax and receipt of service: Matter remanded.

  • STO 2013 CESTAT 1088
  • Refund: Exemption: In the absence of a provision similar to the provision under Section 5A(1A) of the Central Excise Act 1944 according to which the unconditional exemption has to be necessarily availed, such a condition cannot be enforced in respect of service tax: Appellant entitled for refund.

  • STO 2013 CESTAT 1110
  • Refund: Rejected on the ground that appellants were not registered at the material time: Commissioner (A) holding in favor of appellants on the basis of judgment of High Court of Karnataka: Stay application filed by the department rejected.

  • STO 2013 CESTAT 399 LB
  • Refund: Rebate: Court Fees: Section 86(6) clearly speaks of charging of fees in respect of demand of service tax, interest or levy of penalty. Section 86(6) neither talks of refund /rebate nor there is any residuary clause in 86(6) to cover appeals other the demand of service tax, interest and penalty. Therefore it is clear that legislature did not intend to charge any fees in appeals relating to refund/rebate. There is no doubt that no fees is payable on appeals relating to refund/rebate of Service Tax. Since provisions under Section 129A (6) of Customs Act and 35B (6) of Central Excise Act, are identical, no fees is payable in respect of appeals pertaining to refund of excise duty or Customs duty too.

  • STO 2013 CESTAT 639
  • Refund: Services used for authorized operations in SEZ: No break up of refund claims showing how much has been rejected on the ground of services wholly consumed in SEZ and how much on other services available in the Order: Refund claim also rejected for want of verification of invoices and also nexus of service to authorized operation: Appellants should provide all details/evidence in respect of seven services to substantiate their claims that there services were used in authorized operations in SEZ and thereafter original authority shall pass fresh order after affording opportunity of hearing to the appellants.

  • STO 2013 CESTAT 711
  • Refund: claim which pertains period beyond 1 year is clearly time barred: Appeal rejected.

  • STO 2013 CESTAT 805
  • Refund: Service used for export of goods: Notification No.17/2009-S.T: All the conditions including time limit for filing refund claim within one year from the date of export are mandatory requirements: Appeal rejected.

  • STO 2013 CESTAT 693
  • Refund: Notification No. 17/2009-ST dated 07.07.2009: Appellants can claim the refund of service tax paid of transport of goods from place of removal to inland container depot port or airport: the document submitted by the appellant before the original authority as well as the Commissioner (Appeal) do not indicate any amount shown on transportation charges under GTA service: Appeal rejected.

  • STO 2013 CESTAT 811
  • Refund: Limitation under Section 11B applicable even in case of refund of excess payments made.

  • STO 2013 CESTAT 1087
  • Business Auxiliary Service: Refund: Whether the appellant can be compelled to avail unconditional exemption available for 'Business Auxiliary Service' (BAS) rendered to printing industry: Entire service is exported and there is no domestic consumption of the service rendered by the appellant: In the absence of a provision similar to the provision under Section 5A(1A) of the Central Excise Act 1944 according to which the unconditional exemption has to be necessarily availed, such a condition cannot be enforced in respect of service tax.

  • STO 2013 CESTAT 450
  • Refund: Services Provided to SEZ: Notification 4/2004 exempts services consumed inside the SEZ. There is no exemption in respect of services consumed outside SEZ. In absence of any exemption, there is no question of refund.

  • STO 2013 CESTAT 613
  • Refund: Notification No.13/2003-ST dated 20/06/2003: Broker of Mutual Fund: Appellant is eligible for refund of service tax period prior to 09/07/2004 in accordance with law. However, for the period subsequent to 09/07/2004, the appellant would not be eligible for any refund: Matter remanded back.

  • STO 2013 CESTAT 294
  • Refund: Leasing of machinery, by no stretch of imagination, can be considered as "banking and financial service": Amount shown as “receivable” in the books of accounts: Refund to be transferred to CWF.

  • STO 2013 CESTAT 581
  • Refund: Services used for export of goods: CHA invoices not produced, appellants are ready to produce the invoices : Shipping bill number not mentioned in CHA invoice: If other documents can co-relate the fact, matter remanded for verification.

  • STO 2013 CESTAT 359
  • Refund: Input services used for export of goods: Notification No. 41/2007-S.T.: Limitation provided in the notification for filing refund claim cannot be extended by any court of law.

  • STO 2013 CESTAT 377
  • Refund: Refund was rejected on the basis of two invoices where shipping bill numbers were not mentioned: Appellants prepared to submit all the documents showing co-relation of services with goods exported: Matter remanded.

  • STO 2013 CESTAT 172
  • Refund: Use of services for export of goods: In as much as the entirety of the said activity is in relation to the transportation of export of the specified goods, refunds claimed in entirety are liable to be paid, in terms of the Notifications referred to.

  • STO 2013 CESTAT 196
  • Refund: Rule 5 of Cenvat Credit Rules, 2004: Department objection on the ground that at the material time the appellants had not obtained registration for services which they claim to have exported: Service tax being a destination based consumption tax, in the case of exports there should not be any tax burden and the tax burden, if any, is to be imposed by the Government of the country where the services are consumed.

  • STO 2013 CESTAT 210
  • Refund: Service consumed wholly within SEZ exempted: Department of the view that refund of such tax cannot be claimed: Appellant is eligible for refund of service tax paid on input services wholly consumed within SEZ under the provisions of section 11B of the Central Excise Act, 1944, read with section 83 of the Finance Act, 1994, subject of course to the satisfaction of conditions stipulated therein

  • STO 2013 CESTAT 481
  • Refund: Services used for export: Non speaking order: Without reproducing the contention or summary of contentions and coming to a conclusion thereof, it cannot be said that the order is a reasoned or a speaking order.

  • STO 2013 CESTAT 187
  • Refund: Appellant having discharged his excise duty liability from PLA account meant for Service Tax, when asked to pay duty from the other Cenvat account of excise duty, is entitled, to make corrective accounting entries: With the second time payment of duty, the appellant is admittedly entitle to take the credit of the duty earlier paid by them: Denial of refund claim on the ground of limitation is not justified.

  • STO 2013 CESTAT 327
  • Refund: Input Services: Group insurance health policy, though a welfare measure, is an obligation cast under the statute that the employer has to obey and, therefore, the policy taken by the employer is a service constituting activity relating to business which is covered under the 'input service' definition.

  • STO 2013 CESTAT 100
  • Refund: Accumulated Cenvat credit: For the subsequent period the authorities allowed refund claim of the appellants: Matter remanded to examine the case on the basis of subsequent order and Board’s Circular. 

  • STO 2013 CESTAT 136
  • Refund: Notification No. 41/2007- S.T.: List of services which have been availed by the appellant would indicate that the services which are received by the appellant are in relation to the business activity of the appellant i.e. renting of godowns to various persons.

  • STO 2013 CESTAT 95
  • Refund: SEZ Unit: Input services on which refund claimed are found mentioned in the approved list: Refund admissible.

  • STO 2013 CESTAT 96
  • Refund: SEZ Unit: Services provided to a SEZ or unit in the SEZ is deemed as export as per the provisions of Section 2 (m) (ii) of the SEZ Act, 2005 and as per Rule 31 of the SEZ Rules, 2006, the appellants are entitled for exemption from payment of service tax on the services which are used or provided to a unit in the SEZ: Appellant eligible for refund of the amount of Service Tax paid on Rent-a-cab services, Management, Maintenance & Repair services 

  • STO 2013 CESTAT 143
  • Refund: Unjust enrichment: Whether incidence passed: Appellant has passed the hurdle of unjust enrichment and the provisions of Section 12B will not be applicable in this case as the club and the members are not separate and are one.

  • STO 2013 CESTAT 121
  • Refund: Section 73A: Appellant took precaution of collecting amount not as service tax but as ‘contingent liability’ and also made it clear that in case the outcome of the judicial proceedings emerges in their favour, the amount would be refunded along with interest and subsequently when the matter was clarified by the Board finally vide Circular dated 29/01/2009 that the amount is not required to be collected by the builders, they returned the money along with interest. In these circumstances, the provisions of Section 73A are not attracted at all.

  • STO 2013 CESTAT 92
  • Refund: Notification No. 09/2009-ST dated 03.03.2009 rejected on limitation ground: Due to initial period lenient view to be taken: Matter remanded. 

  • STO 2013 CESTAT 24
  • Refund: Remand by Commissioner (Appeals): Order passed by the first appellate authority in setting aside the impugned orders which rejected the refund claims and remanding the matter back to the adjudicating authority for deciding the issue on merits after following the principles of natural justice is correct proposition of the law as on today: Appeals rejected.

  • STO 2013 CESTAT 21
  • Refund: Amount of service tax paid twice: Appellants justified their claim but not properly appreciated by the lower authorities: Matter remanded.

  • STO 2013 CESTAT 145
  • Refund: Documents not produced by the appellants is the reason for rejection: Appellants never asked to produce: Remand given with directions that adjudicating authority should ask the appellants to produce whatever documents required.

  • STO 2013 CESTAT 59
  • Refund: Unjust enrichment: Section 12A mandates that the documents relating to assessment, tax invoice etc. prominently indicate the amount of service tax forming part of the value at which the taxable service has been rendered: Appellants, however, chose not to show the service tax amount in any of the invoices: Under Section 12B, the appellant will be deemed to have passed on the full incidence of tax to the service recipient inasmuch as the contrary has not been proved by the appellant.

  • STO 2013 CESTAT 84
  • Refund: Excess service tax paid inadvertently: Authorities to verify whether the Cenvat credit has been taken on the said excess service tax by the service receiver.

  • STO 2012 CESTAT 1032
  • Refund: Appellant is eligible for the refund of the service tax paid on stevedoring and documentation charges services rendered by the service provider.

  • STO 2012 CESTAT 1136
  • Revisionary Order: Refund of the appellants for service tax paid on services used for export: Lower authority partly allowed refund: Appellants filed appeal against the partial rejection order: Commissioner passed Revision Order u/s 84 for the refund allowed: Stay required to be granted against Revisionary order: Stay granted. 

  • STO 2012 CESTAT 979
  • Interest: Delayed refund: appellant is eligible for the interest after three months of filing of the refund claim with the authorities till the same was sanctioned to the appellants.

  • STO 2012 CESTAT 976
  • Interest: Delayed refund: Appellant held eligible for interest on refund after 3 months from the date of filing refund claim and not from the date when the order was passed by higher appellate forums.

  • STO 2012 CESTAT 1087
  • Refund: Input Service: Credit availed on service tax paid on reverse charge mechanism: unable to utilize the credit: Refund admissible.

  • STO 2012 CESTAT 1014
  • Refund: Terminal Handling Charges: Service provider classified the charges under Port Services which were specified services under Notfn.No.41/2007, refund cannot be denied on the ground THC were not specified or were specified only by Notfn.No.17/2009-ST dated 7.7.2009.

  • STO 2012 CESTAT 998
  • Refund: Services utilized for export: Invoices / bills raised by the service provider indicate that they are engaged in providing different type of services than the one specified in the invoice. It is seen that no verification has been done by the Revenue at the service providers end so as to factually verify whether the services actually stand rendered by them or not. Once the invoices describing the type of service stand issued by the service provider and service tax stand paid on the same, we find no justifiable reason to deny the benefit of refund of such Service Tax to the assessee.

  • STO 2012 CESTAT 989
  • Refund: Notification No. 41/07 dated 6.10.07: refund of Service Tax paid on the transportation of empty containers from yard to the factory for stuffing of the export goods is admissible inasmuch as the said activity is in relation to the transportation of the export goods.

  • STO 2012 CESTAT 981
  • Refund: Authority allowed refund on the basis of sound findings: Departmental appeal rejected.

  • STO 2012 CESTAT 1048
  • Cenvat credit: Nexus of input service : refund of unutilized CENVAT credit taken on input services which were claimed to have been used for export of consulting engineer’s service and maintenance or repair service: Board’s Circular not considered by original adjudicating authority: Matter remanded.

  • STO 2012 CESTAT 991
  • Refund: Double payment of Service Tax: When Appellate authority elaborately dealt with the issue in his order and was fully satisfied that claimant was right to get refund on the basis of evidence and materials adduced before him by inquiry it is difficult to disturb such conclusion in absence of cogent evidence to contrary.

  • STO 2012 CESTAT 1010
  • Refund: Appellants part refund was rejected on the ground that they had not produced proof of having received foreign exchange: Appellants did not challenge rejection order: Filing of refund claim for same amount after receipt of evidence not permissible. 

  • STO 2012 CESTAT 1113
  • Refund: Limitation: Appellant had paid the service tax on 15/01/2009, and the refund claim was filed on 28/01/2010 i.e. after a lapse of one year from the date of payment of tax. Rejection of refund claim on account of time bar is sustainable in law.

  • STO 2012 CESTAT 1112
  • Refund claim: time bar: refund filed after one year from the date of payment of tax: rightly rejected.

  • STO 2012 CESTAT 999
  • Refund: Service tax paid to Courier Agency: it is almost impossible to prevail upon the courier agency to show the lEC of appellants in their invoices and therefore, correlation with reference to the address given in their invoice should be treated as sufficient and refund should be granted.

  • STO 2012 CESTAT 1108
  • Refund: Notification No. 41/2007 dated 6.10.2007: Port Services utilized before July, 2008 cannot be said to have been used for export of goods for the period from July, 2008 to December, 2008: Refund rightly rejected.

  • STO 2012 CESTAT 957
  • Refund: Service tax paid by mistake without knowing that SSI exemption limit was raised to 8 lakhs: Exercising is option is must for availing SSI exemption, payment of duty by mistake cannot be considered as execising of option to avail exemption: Hence, prima facie case found and waiver from pre deposit granted.

  • STO 2012 CESTAT 1031
  • Refund: Services used for export: Notification. No. 41/2007 S.T. Limitation: time limit of one year will be applicable only to the refund claims filed after 7.7.2009.

  • STO 2012 CESTAT 1030
  • Refund: Cenvat credit availed after the period of exportation of goods: Refund of unutilized credit not admissible.

  • STO 2012 CESTAT 870
  • Refund of Service Tax: what is required to be examined is whether service tax was paid and it has been paid under the category of services listed in the notification or not. Since there is no dispute that service tax has been paid under category of port services, denial of service tax cannot be sustained.

  • STO 2012 CESTAT 903
  • Refund: Whether provisions of Section 11B would be applicable to unconstitutional levy: trite law on the refund of an amount paid as duty or liability is governed by provisions of Section-11 B of the Central Excise Act; 1994. In this case, the respondent had filed refund claim belatedly. In the peculiar facts and circumstances of this case, the refund claim was correctly rejected by the lower authorities.

  • STO 2012 CESTAT 1025
  • Refund: Services used for export of goods: GTA Service: Goods admittedly transported from the appellant's factory directly to Kakinada port. No dispute with regard to the quantity of goods cleared from the factory and transported to the port or with regard to the service tax paid on the GTA service used for transportation: Objection that details of the exporter’s invoice were not specifically mentioned in the lorry receipts, not proper since a broad co-relation is found: Appellant entitled to a rebate.

  • STO 2012 CESTAT 890
  • Refund: Services used for export: Rejection on the grounds which are curable in nature: Matter remanded.

  • STO 2012 CESTAT 1020
  • Refund: Time limit of 60 days under Notification No. 41/2007-S.T. dated 06.10.2007 amended to 6 months by Notification No. 32/2008-ST dated 18/11/2008  As per the well established principle of interpretation of exemption notifications, nothing can be added to, or deleted from, or otherwise altered. The notification has to be construed in terms of the plain meaning of the words and expressions used therein. 

  • STO 2012 CESTAT 1005
  • Refund: Service tax paid on foreign exchange: No co-relation between invoices issued to foreign service recipient and foreign exchange received: documents not endorsed by STIP Pune: Matter remanded for verification. 

  • STO 2012 CESTAT 832
  • Excess Payment: Adjustment not allowed: Appellants not to claim refund: Adjustment of excess payment permitted by adjusting interest and penalties.

  • STO 2012 CESTAT 800
  • Refund: Payment for service tax made twice for the same quarter: Since the amount paid as dues, provisions of Section 11B applicable: Refund barred by limitation.

  • STO 2012 CESTAT 1066
  • Refund: Export of goods: Port & Technical Inspection: Objection that service provider not authorized by the Port authorities: Held: Appellant has fulfilled the condition of the Notification No. 41/2007-S.T, therefore, they are entitled for the refund claim.

  • STO 2012 CESTAT 937
  • Remand: Power of Commissioner (A) after 11.5.2001: Refund: All aspects examined by Commissioner (A) and for quantification of refund in terms of Board’s circular the matter was sent back to original authority: Cannot be said to be remand: Departmental appeal dismissed.

  • STO 2012 CESTAT 865
  • Refund: Department seeking stay of Order of Commissioner (A) sending matter for requantification of refund: Stay application filed by department rejected: Looking to huge amount of refund being involved in the case, matter listed for early hearing.

  • STO 2012 CESTAT 761
  • Refund: Fumingation charges: Conditions of notification not fulfilled: Agreement copy not produced: refund rightly rejected.

  • STO 2012 CESTAT 923
  • Refund: Export of Goods: Appellant is rightly entitled for the refund of the service tax paid on input services which have been used in the rendering of output services has been exported.

  • STO 2012 CESTAT 921
  • Refund: Notification No. 09/2009-ST dated 03.03.2009 ST: Authorised Operations: Services used for testing of samples also a manufacturing process: Refund admissible.

  • STO 2012 CESTAT 795
  • Refund: Accumulated Cenvat credit by unit in SEZ: Such claim is admissible provided the same is filed within statutory period prescribed under Section 11B: Unjust enrichment not applicable as services used for export of goods. 

  • STO 2012 CESTAT 730
  • Refund: Hire Purchase Service: Dispute prevailing on taxability decided by Commissioner (Appeals): Thereafter, refund claimed, relevant date for counting period of one year to commence from date of decision of Commissioner (Appeals): Refund held to be within time.

  • STO 2012 CESTAT 789
  • Refund: Unjust enrichment: Authority recording fact that respondents did not recover service tax from future flat owners: Such finding not countered by the department: Refund admissible.

  • STO 2012 CESTAT 748
  • Refund: Unutilised Cenvat credit: Denied on the ground of limitation: One year limitation to start from the date when the issue about admissibility of cenvat credit was resolved in favour of the appellants.

  • STO 2012 CESTAT 753
  • Refund: Prior to registration: refund admissible.

  • STO 2012 CESTAT 720
  • Refund: Unjust enrichment: total price was fixed and the assessee had to pay disputed excise duty from the total consideration offered to them by the buyer: Appeal allowed.

  • STO 2012 CESTAT 696
  • Refund: Services used for export: Documents available with assessee to prove eligibility for certain services: Matter remanded. 

  • STO 2012 CESTAT 628
  • Refund: Service tax taken as credit: Revision Order passed by Commissioner without giving any reasoning for upholding the original orders: Remand 

  • STO 2012 CESTAT 706
  • Refund: Education & Higher Education Cess: Board vide Circular No. 134/3/2011-ST dated 08.04.2011 has clarified that refund available in terms of the said notification includes refund of education cess and secondary & high education cess collected on the service tax. 

  • STO 2012 CESTAT 648
  • Refund: Services received at the unregistered premises: Stay sought by department: Stay rejected.

  • STO 2012 CESTAT 647
  • Refund: Export of services prior to 13.12.2008: As per judgment of Honorable Karnataka High Court refund admissible: Revenue’s appeal dismissed.

  • STO 2012 CESTAT 712
  • Refund: Whole of service tax includes Education Cess and Secondary Higher Education Cess: Notification No. 41/2007-ST.

  • STO 2012 CESTAT 655
  • Refund: Appellants contesting liability to pay service tax on commission rendered to foreign clients in India and commission received in foreign currency: Refund admissible. 

  • STO 2012 Guj 780
  • Refund: Adjustment of excess service tax paid not allowed by department: Demands raised for the same excess paid service tax for the subsequent quarters and petitioners paid that amount on the insistence of department: Refund claim filed: HELD: It is not refund of a duty which is found upon completion of assessment excess paid that the petitioner is asking for. It is a duty which the petitioner has already paid separately and second time under insistence of the department which he is asking for being refunded. Under the circumstances, the question of unjust enrichment cannot be applied.

  • STO 2012 CESTAT 594
  • Refund: Even if the appellant was not eligible for refund under Notification No. 09-2009-ST dated 3.3.2009, the appellants were certainly eligible for refund under Section 11B of the Central Excise Act, 1944 

  • STO 2012 CESTAT 528
  • Refund: Export of Services: Terminal Handling Charges also a port service.

  • STO 2012 CESTAT 527
  • Refund: Reviewing authority reviewed the order and found it proper except for a small amount: Department challenged the Review Order: Matter remanded to Reviewing authority on the limited issue challenged by the department.

  • STO 2012 CESTAT 606
  • Refund: Service tax of input service received by appellants: Since they could not utilize the credit, they claimed refund: Refund admissible. 

  • STO 2012 CESTAT 593
  • Refund: Services used for export: Refund rejected on the ground that conditions of Notfn.No.41/2007-ST not fulfilled, without specifying which conditions were not fulfilled: Matter remanded back.

  • STO 2012 CESTAT 1147
  • Refund: Notification 17/2009 providing for refund of Service tax paid on technical testing and analysis there is no condition imposed in column (4) of the table There is no need to insist on the type of correlation being insisted upon by Revenue.

    Curable Defect: CHA has been raising one bill in respect of many shipping bills. There is nothing unusual about it. Since the CHA may not be aware of this requirement of the exporter, such bills were not issued and exporter might not have obtained such bills. This is a curable defect. Appeals allowed after setting aside the orders of the lower authorities and ordering refunds of the impugned amounts subject to the terms above.

  • STO 2012 CESTAT 420
  • Excess service tax paid: adjustment: refund: The whole rationale behind Rule 6 (3) is that where the service tax has been paid on amounts received for providing particular service and that service for some reason has not been provided by an assessee, he can make adjustment of the excess tax paid in the succeeding period. That rationale would be defeated if the condition of refund is insisted to be satisfied only in a particular manner.

  • STO 2012 CESTAT 446
  • Refund claim: Service Tax paid by the service provider without any dispute and without challenging the assessment: Refund is not permissible unless the assessment is challenged.

  • STO 2012 CESTAT 742
  • Cenvat Credit: Refund of unutilized Cenvat credit: Nexus between input services and output services: Commissioner (Appeals) rendered specific findings as to essentiality/necessity of each 'input service' viz. rendering and export of output service.

  • STO 2012 CESTAT 725
  • Refund: Service tax paid on documentation charges under Clearing & Forwarding Agent Service: Refund admissible and cannot be denied by raising a ground that these were not taxable and not eligible for input tax credit.

  • STO 2012 CESTAT 550
  • Refund: Export of Services: Classification of service cannot be changed at the hands of recipient.

  • STO 2012 CESTAT 526
  • Refund: Service tax refund filed beyond one year from the relevant date i.e. date of payment of service tax: Refund rejected.

  • STO 2012 CESTAT 469
  • Refund: Export of Services: Refund claims for quarter ending March, 2008 and June, 2008 filed in revised limit of December, 2008 prescribed by the Board, refund within time. 

  • STO 2012 CESTAT 524
  • Export: Refund: Terminal Handling charges paid for services within the port: Activity to be considered as Port Service: Refund admissible.

  • STO 2012 CESTAT 375
  • Refund: Rejected on the ground that appellants not proved their eligibility for credit : For subsequent period claims allowed : Matter remanded.

  • STO 2012 CESTAT 371
  • Refund: Original or self attested copies of documents required to be produced with refund application for verification.

  • STO 2012 CESTAT 361
  • Refund: Unjust enrichment: Appellant showed that whenever they have collected service tax, they have shown in the invoices and deposited with the exchequer, hence, where service tax has not been shown in the invoice, same has not been collected: Burden discharged.

  • STO 2012 CESTAT 483
  • Refund: Unutilised credit: Once the finding is that adjustment is not impossible, and no draw back or rebate was claimed, the appellant cannot be denied refund.

  • STO 2012 CESTAT 350
  • Refund: Service tax paid erroneously on advances received: Stay: Based on decision of co-ordinate Bench, stay granted.

  • STO 2012 CESTAT 353
  • Export of Services: Refund: Rejection on the ground that payment not received in foreign currency: a certificate issued by ICICI Bank (their banker) who has stated that they had collected the amount on behalf of the appellant from a Canadian firm to whom the services were exported. The certificate confirms that payment of Canadian Company was converted into Indian currency and paid to the appellant: Refund admissible.

  • STO 2012 CESTAT 355
  • Refund: Export of Services: Refund rejected as barred by limitation: In view of amendment providing filing of refund for quarter March-June, 2008 can be filed by December, 2008: Appeal allowed.

  • STO 2012 CESTAT 370
  • Refund: Export of Services: fumigation is a specialized cleaning process, requiring to satisfy the condition of notification of written agreement between buyer and seller and Id. Counsel for the respondent fairly agree that they do not have a written agreement.

  • STO 2012 CESTAT 312
  • Insurance Auxiliary Service: Service Tax paid in advance before receipt of taxable value: Contention of department that appellants should have asked for refund of service tax paid earlier: Held that since the amount of tax is less and it is a case of advance tax paid which is also permissible under the law: Impugned orders set aside.

  • STO 2012 CESTAT 1139
  • Refund: SEZ: Notification does not require the invoices to be submitted but the documents to show that Service Tax has been paid, are required: Confirmation in original from the service provider giving the details of Service Tax received by them in the light of this requirement, can be said to be sufficient.

  • STO 2012 CESTAT 374
  • Refund: delay in filing condoned as Notfn.No.9/2009 was immediately amended and appellants were not aware about procedure for filing refund claim as they were filing the refund for the first time.

  • STO 2012 CESTAT 373
  • Refund: Export of Service: Written agreement must for technical testing & analysis services: Refund rightly rejected in absence of any agreement: ST paid on Transportation of empty containers admissible.

  • STO 2012 CESTAT 356
  • Refund: Prior to obtaining registration with service tax department: Permissible.

  • STO 2012 CESTAT 295
  • Refund: Export of services: Declaration not filed is a serious lapse: Limitation prescribed under Section 11B applicable.

  • STO 2012 CESTAT 279
  • Refund: GTA Service: Refund rejected on the ground consignment notes did not contain details of export invoices: since invoice issued by the transporter has all the relevant details, the refund claim is to be allowed:

  • STO 2012 CESTAT 273
  • Refund: Services used for export of goods: Various services involved, specific findings given for each service and matter remanded to original authority for re-conciliation and verification.

  • STO 2012 CESTAT 320
  • Refund: Adjudication on different point not permissible, when it was concluded that the appellants were eligible for refund.

  • STO 2012 CESTAT 287
  • Refund: absence of show cause notice does not mean violation of principles of natural justice.

  • STO 2012 CESTAT 610
  • Refund: Notfn.No.41/2007-ST: Notification prescribes the complete procedure and time limit for claiming the benefit there under. Therefore, unless the conditions specified therein are satisfied including

  • STO 2012 CESTAT 584
  • Refund: Payment of service tax on exempted services permissible as there is no barring clause under Section 93 of the Finance Act, 1994, prohibiting payment of service tax by assessee on the taxable services wholly exempt: Refund under Notfn.No.17/2009 admissible.

  • STO 2012 CESTAT 340
  • Refund: Original invoices not available and in some cases details not produced: Refunds rejected: Appellants in possession of original invoices seek remand proceedings: Matters remanded back.

  • STO 2012 CESTAT 262
  • Refund: Terminal Handling Charges: Covered under Port Service: Refund admissible.

  • STO 2012 CESTAT 238
  • Refund: Cenvat Credit: Appellants did not produce sufficient evidences required under the notification: Matter remanded with directions to produce evidence before the lower authority.

  • STO 2012 CESTAT 341
  • GTA: Service tax paid twice: Refund: Complete evidence not forthcoming: matter remanded.

  • STO 2012 CESTAT 316
  • Refund: Input services used for developing units in SEZ and DTA : Ratio of payment received to be determining factor for allowing refund of services used in SEZ.

  • STO 2012 CESTAT 138
  • Refund: Issuance of show cause notice must before rejecting refund claim.

  • STO 2012 CESTAT 603
  • Refund: Input Services used for export of goods: As facts required to be ascertained: Matter remanded back.

  • STO 2012 CESTAT 92
  • Construction of Residential Complex: Demand: Amendment in 2010 not retrospective, hence, no ST payable by developer/builder: Refund: Unjust enrichment applicable even if no provision under the Finance Act, 1994.

  • STO 2012 CESTAT 69
  • Refund: Notfn.No.41/2007-ST: Refund sanctioned @ 8% to 10% prevailing at the time of filing refund claim upheld.

  • STO 2012 CESTAT 154
  • Refund: Rejection on the ground that it was filed beyond one year: Payment made under protest, hence, limitation not applicable: Appeal allowed restoring Original order.

  • STO 2012 CESTAT 125
  • Refund: Notfn.No.9/2009-ST: SEZ Unit: The appellant in their application dated 06.07.2009 had requested Approval Committee for approval of 53 services and in respect of 49 services they have received the approval from the Development Commissioner and in respect of these 49 services they are eligible for claiming refund under Notification No.9/2009-ST dated 3.3.2009 as amended.

  • STO 2012 CESTAT 198
  • Refund: Education Cess to be “nil” if service tax is “Nil” as per Notfn.No.41/2007-S.T: Stay granted from recovery of refund already granted.

  • STO 2012 CESTAT 82
  • Refund: Service tax paid on services for export of goods: In the absence of contrary finding exporter should not be denied the benefit through rigidity of procedure.

  • STO 2012 CESTAT 428
  • Refund: Double payment of service tax for the same month: Payment made second time is without authority of law and needs to be refunded back subject to provisions of unjust enrichment.

  • STO 2012 CESTAT 128
  • Refund: LRs do not mention details of invoices to set linkage of services used for export of particular consignments: Matter remanded.

  • STO 2012 CESTAT 87
  • Refund: Export of Services: Speaking Order: Commissioner (Appeals) exercised co-extensive and co-terminus power, there is nothing to doubt about the claim of the respondent. Had the appeal order been cryptic and unreasoned, there would have been scope to interfere.

  • STO 2012 CESTAT 18
  • Refund: Service tax paid on foreign services received from abroad prior to 18.4.2006: Refund admissible: Departmental appeal dismissed.

  • STO 2012 CESTAT 22
  • Refund: Cenvat Credit: Appellants took cenvat credit on bare pipes by claiming that value of bare pipes was included in the value, subsequently they filed refund of service tax paid on the value of bare pipes which has been denied.

  • STO 2012 CESTAT 59
  •  Refund: Service tax shown to have been paid by issuing debit note, admissible.

  • STO 2012 CESTAT 48
  • Refund: Unjust enrichment: Appellant produced Chartered Accountant’s certificate for having not passed on the incidence of tax: Tax paid subsequently: Unjust enrichment satisfied.

  • STO 2012 CESTAT 491
  • Refund: Penalty: Unjust enrichment: In view of the presumption in the law that an penal liability can never be passed on to another person who has not committed the offence, the view taken by the Tribunal in the case of Offshore Hookup that department has to prove that unjust enrichment would mean that some extra effort is required in addition to merely looking at the balance sheet or profit & loss account on the part of the department. 

  • STO 2011 CESTAT 317
  • Service Tax: Commercial or industrial construction service: Demand: Waiver of pre-deposit and stay of recovery: The work undertaken by the appellant was one awarded to them by the builder namely M/s. SKS Group and that whatever materials and goods were received by the builder from the beneficiary were transmitted to the appellant for being used in the construction service. The builder admittedly paid Service Tax on the gross taxable value including the cost of such materials.(Para 7). The refund claimed by the builder before the original authority is on the ground that they were not liable to pay Service Tax on the taxable value on which the sub-contractor (the present appellant) paid tax. In the present case of the appellant, the main contention is that the Department cannot recover Service Tax on a given taxable value from both the builder and the sub-contractor. If that be so, the issue is very much connected with the one being agitated by the builder through a refund claim before the original authority. Therefore, the original authority should deal with both the matters and pass a common order. Accordingly, the orders of the lower authorities are set aside and appeal is allowed by way of remand with a direction to the original authority to undertake de novo adjudication of the relevant show-cause notice at the time of taking decision on the refund claim filed by M/s. SKS Group. The application also stands disposed of.(Para 8) 

  • STO 2011 CESTAT 259
  • Service Tax: Refund: Delay in filing refund claim: Time bar: The appellants has not been able to show any evidence on record to reflect upon to the fact of refund claim originally filed on 18.01.2008. It is agreed that there no correspondence or any evidence to substantiate their claim. The appellant’s plea that they presented their refund claim 18.01.2008, which was not accepted cannot be held to be valid at this stage. Accordingly, impugned order of Commissioner (Appeal) is upheld and the appeal is rejected.(Para 4)

  • STO 2010 CESTAT 679
  • Service Tax: Refund : Bar of limitation: Section 11B: Remand: The appellants, like buyers of excisable goods from manufacturers, are required to establish that their refund claims are within the statutory period of one year from the relevant date, viz the date on which they paid service tax to the builder. The appellate Commissioner's order is not clear on the dates of payment of service tax to the builder or on the dates refund claims themselves. The appellate authority chose to apply a decision of this Tribunal, which is not good law in view of Allied photographics India Ltd (supra). The original authority did not have the benefit of the applicable case law. For all these reasons, the order of the lower authorities are set aside and remand the matter to the original authority for de novo adjudication. It is made clear that the said authority shall follow the view taken herein with regard to the relevant date. (para 7)

  • STO 2010 Guj 810
  • Service Tax: Refund claim filed before wrong authority: Limitation of period: Since the original application for refund was filed within time, though before wrong authority, it cannot be said that the said application was barred by limitation. Thus there is no infirmity in the order passed by the authorities below.(Para 8).

    Appeal dismissed.

  • STO 2010 CESTAT 372
  • Service Tax: Refund under Notification No. 41/2007-S.T. Dated 6.10.2007: As per Circular No. 112/2009-S.T. dated 12.03.2009.even if the service provided is registered for providing one service refund cannot be denied on the ground that the taxable service provided are not covered under the registration. The documentary evidence showing the collection of service tax from the appellants would meet the requirement of law and the appellants is not expected to produce evidence to show that service provider is actually deposited the dues with the Government. Accordingly, the denial of refund claim on the ground that the appellants is not registered under the “Business Auxiliary Service” is not sustainable. Accordingly, the appeal is allowed with consequential relief by setting aside the impugned order.(Para 4). 

  • STO 2009 CESTAT 1472
  • Service Tax: Service of construction of residential complex, taxable w.e.f. 16/6/05: Circular No. 96/7/207-ST dt.23-08-2007: Refund: Period of limitation under Section 11B / 83: The respondent had, at their own, obtained service tax registration for payment of service tax on their activity by treating the same as taxable service under Section 65 (105) (zzzh) read with Section 65 (30A) and 65 (91A) and during the period from March 2006 to September 2006, the tax was paid by them without any protest. It is only after issue of the Board's Circular on 23/8/07 that they became aware that their activity is not taxable and they filed refund claim on 13/9/07. The refund claim, has obviously, been filed after on expiry of period of one year from the date of payment of service tax. Hon'ble Delhi High Court in the case of Jumax Foam Pvt. Ltd. vs. U.O.I. reported in STO 2003 Del 170 relying upon Hon'ble Supreme Court's judgment in the case of Mafatlal Industries Ltd. vs. U.O.I. 1997 (89) E.L.T. 247 (S.C.) = CEO 1996 SC 2 and Assistant Collector of Customs and Others vs. Anam Electrical Manufacturing Co. and Others STO 1997 SC 33 , has held that even if some tax is collected by the authorities under the Act by misinterpreting or misapplying any of the rules, regulations or notifications or erroneous determination of relevant facts, the same may be called an illegal levy, however, for the refund of such amount, though illegally collected, a claim has to be necessarily preferred within the prescribed period of limitation. The limitation prescribed under Section 11B made applicable to the service tax by virtue of Section 83 of the Finance Act, 1994, would be applicable and since there is no dispute about the fact that refund claim has been filed after the expiry of the limitation period of one year from the relevant date and the payment of service tax was without any protest, the refund claim has to be treated as time barred.(Para 3.1).

    Revenue appeal allowed.

  • STO 2009 CESTAT 967
  • Service Tax: Constructing residential houses/flats by engaging constructors : Scope and liability: They have paid the Service at the instance of the officers for the period 1.4.2005 to 30.06.2006 and filed refund claim on the ground that no tax was liable to be paid on them in view of Board Circular No. 108/02/2009-St dated 29.01.2009. The refund was rejected on the ground of unjust enrichment as well as on merits. The Commissioner (Appeals) proceeded on the basis of Board Circular F.No.332/35/2006-TRU dated 1.8.2006 as the appellant failed to produce any evidence that the incidence of duty has not been passed on to any other person. The service tax was paid by them and it was not recovered from the customers. In support they placed audited financial statement for financial year 2006-2007, where it was indicated that the amount was not recovered from any customer. In view of the above the matter is required to be examined on merit as well as on unjust enrichment on the basis of Board's Circular and the evidences placed by the appellant.(Para 3,4,5).

    Matter remanded.

  • STO 2009 CESTAT 775
  • Service Tax: Refund claim and unjust enrichment: The very fact that in some cases service tax was refunded to the customers shows that in all the cases the amount collected included the ailment of service tax. This is the only natural conclusion that can emerge from these facts. In such a situation as rightly observed by the Lower Authorities, how the Chartered Accountant came to the conclusion that in respect of domestic clients, the amount charge did not include service tax is not explained and does not appear to be logical. The burden of proving that the benefit of the service tax liability has not been passed on is on the appellants and under these circumstances the certificate of Chartered Accountant is not based on facts and from the documents, the only conclusion that emerges is that in respect of domestic clients, appellants had collected the service tax. Therefore the claim for refund of this amount has been rejected correctly(Para 4).

    Refund of Cenvat credit taken beyond six months: Scope and admissibility: In the case of service tax the credit can be taken only after the payment is made in respect of the bills raised for providing service and the service tax is also paid. Therefore the service receiver is obliged not only to make payment but would also be responsible to ensure that service tax has been paid. In this case admittedly the payments were made from June 2006 to October 2006 but does not come out clearly as to whether there were different services and in respect of how many services tax was paid in June etc. In view of the obligations on the service receiver, the time taken by the appellants to take the credit does not appear unreasonable especially in view of the fact that exact delay in respect of each credit has not been brought out in the record. Therefore, the benefit of doubt has to be extended to the appellants and it has to be held that credit has been taken within a reasonable time. The appellants are eligible to take the credit. However, since the refund claim has been rejected on the ground that the appellants are not eligible for the credit at all, the matter is remanded to the Original Adjudicating Authority to examine the eligibility for refund (Para 4).

    Matter remanded.

  • STO 2009 CESTAT 764
  • Service Tax: Refund: Unjust enrichment: Scope and admissibility: Any payment, if debited to Profit and Loss Account is to be considered as the revenue expenditure and shall amount to addition to the cost of the finished goods. In this case the appellants have debited the impugned amount to the Profit and Loss Account and thus the cost of the finished goods has increased to this extent. The sound accounting principles require that against the current year's receipts, the true cost, which has been incurred for earning such receipts, has to be charged, This has been upheld by the Hon'ble Gujarat High Court in case of DCW Ltd, & Anr. Vs. Union of India reported in Section 11B (1) of the Central Excise Act, 1944, clearly provides that it is not the duty as such but "the incidence of such duty" which has to be shown to have not been passed on to any other person. The Hon'ble Supreme Court in the case of Solar Pesticides reported in STO 2000 SC 16, has laid down the principle that it is not the duty as such but "the incidence of such duty", if passed on directly or indirectly, the refund is hit by the unjust enrichment clause. Accordingly, in this case the impugned amount has been passed on to the other person, as it has been debited to the Profit and Loss Account amounting to increase in the cost. (Para 6,7,10).

    Appeal rejected.

  • STO 2009 CESTAT 394
  • Service Tax: Waiver of pre-deposit: Appellant has already deposited 50% of the total confirmed amount of duty and penalty.(Para 1).

    Stay granted.

  • STO 2009 CESTAT 523
  • Appeal: Commissioner (A) without allowing appellants to adduce evidence of having paid service tax on their claim for refund of service tax paid on tickets cancelled by them: Directions for pre deposit issued and directed to appear before the Commissioner (A) who shall after accepting pre deposit decide the appeal on merit after following the principles of natural justice.

  • STO 2009 CESTAT 722
  • Service Tax: Refund: The department cannot insist on implementation of a Circular dated 27.07.05 when the impugned period is January 2005 to March, 2005. Moreover, the department has merely passed the order-in-revision and has not issued any demand notice for the amount refunded earlier by the original authority. The appellants have also clarified that they have got refund only in respect of such cases where they have obtained certificate from the GTA and produced before the original authority. In view of the above, the order passed by the original authority does not require any interference. Hence, the impugned order of revision is set aside and original order is restored.(Para 3).

    Appeal allowed.

  • STO 2009 CESTAT 561
  • Refund: Appellants claimed refund of service tax paid on construction service of residential complex: Matter remanded.

  • STO 2009 CESTAT 12
  • Service Tax: Building construction service: Activity - developed the property by building the flats for themselves and the land owner and sold the flats to others: Refund of tax erroneously paid: Remand: It is required by appellate authorities to state the issue involved in the appeal, the arguments from both sides and to pass a speaking order detailing the facts of the case and the law points involved. The Order passed by the Lower Appellate Authority in this case does not deal with the contentions raised by the appellants. As such, matter remanded to the Lower Appellate Authority to pass speaking order (Para 5).

    Appeal allowed by way of remand.

  • STO 2009 CESTAT 162
  • Service Tax: Telephone Services, Online Information & Database Access & Retrieval Services, Leased Circuit Service: Refund: Eligibility: Appellant had paid the service tax on Maximum Retail Price (MRP) of the Recharge Coupon Vouchers (RCVS) for their prepaid services but the recharge vouchers had actually been sold to the distributors at a discounted price from the MRP and some recharge vouchers had also been distributed free of cost to distributors/operators. The claim was filed on the ground that the money value of the discount given on the recharge vouchers and that distributed free, had not been received by the respondent and hence, service tax was not payable. RCL has appointed RCIL as an agent vide marketing agreement dated 1.10.2004. There are various clauses of the agreement and each clause indicates that RCIL is not a principal to principal purchaser or seller but is only an agent for selling of the products of RCL. The service tax is to be paid only on the actual amount received from RCIL and PCO service providers. PCO cards are given to RCIL, who in turn to gives to all the distributors and sellers at a discounted price. The amount received by the RCIL is transmitted back to RCL. RCIL cannot offer any discount or offer any scheme other than what is offered by the RCL. As per the agreement, RCIL shall raise bills on behalf of RCL. This would indicate that service tax paid by RCL on MRP, is calculated wrongly and excess service tax paid, is not due to the government, as the respondent has not realized the actual value of MRP. Though all the invoices are issued by the RCIL, the said invoices appear as bill of RCL. As regards the unjust enrichment, there is no question of unjust enrichment as RCIL has raised invoices as an authorized person of service provider i.e. RCL. Hence, amount charged from the distributors being less than the denomination of the value of recharge coupon vouchers, they are eligible for refund of service tax paid in excess. RCIL billed/invoiced distributors only for the discounted price hence, the question of passing on the burden of the service tax either by the RCL to RCIL or by RCIL to the distributors does not arise.(Para 5).

    Unjust enrichment: The respondent RCL and their agent RCIL has received only the amount shown in the invoices and not received amount for the vouchers distributed free, hence, the respondent's are eligible for the refund claim. Looking at the market agreement entered into by the RCL and RCIL, the RCIL though an independent entity, is an authorized person to sell RCVs to pre-paid PCO and RCIL has transmitted back the amount received by them from the distributors to RCL. This is not disputed by the adjudicating authority hence, the question of unjust enrichment does not arise. The quantification of the refund to the respondents needs to be verified (Para 12).

    Appeal disposed off.

  • STO 2006 CESTAT 1157
  • Service Tax: Banking and other Financial Services: Refund: In the present case, initially, the Commissioner (Appeals) granted relief to the respondents. Revenue's application for stay of the Commissioner (Appeals)'s order has been dismissed by the Tribunal. In these circumstances, the Assistant Commissioner has to implement the Commissioner (Appeals)'s order. Moreover, the issues before the Commissioner (Appeals) in the impugned order were only grant of refund by way of cheques and relief in respect of the amounts rejected by the lower authority on account of time bar. Therefore, he was not expected to go into matters, which were not raised before him. The respondents have produced case-laws to show that appeal by department before Tribunal is not maintainable on a new ground which was entirely new from the one taken by the department before Commissioner (Appeals). The Supreme Court, in the case of Warner Hindustan Ltd. v. Collector of Central Excise, Hyderabad - STO 1999 SC 59 held that it is not permissible for the Tribunal to consider a case laid for the first time in appeal. In any case, on going through the records, it is found that the refund itself has arisen on account of the fact that the respondents discharged Service Tax liability on the billed amount while what they received from their customers was much less. In these circumstances, there cannot be any unjust enrichment.(Para 5).

    Revenue appeal rejected.

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