2015 (10) TMI 2364 - AT - Service Tax

Refund of service Tax Claimed under Service received by SEZ developer in terms of Notification No. 40/12-ST Refund rejected on ground that filed beyond one year from date of payment of 15% advance and as such condition of clause 3(e) of Notification violated Appellant contends that initially 15% advance payment was made by Respondent to service provider but on final billing stage 15% advance was reduced from total amount and on the balance amount service tax was charged - Refund claim filed within one year from date of payment against bills. Held That - Service provider has charged service tax on net cost of provided services after adjusting 15% of advance already paid to service provider - Refund claim not found to be time barred in respect of 21 invoices involving refund of ₹ 17,80,316/- - No evidence regarding actual date of payment of service tax has been provided regarding one invoice no. Nashik/Misc/2012-13/RAB-021. Refund claim of ₹ 65,624/- - Date of invoice should not be taken as relevant date thus not found maintainable as there is no such provision in Notification. One year period envisaged in notification correctly reckoned from date of payment of service tax to service provider and not from the date of advance payment - Impugned orders are sustainable Decided partially in favour appellant.

Summary

Issues:
1. Refund claim filed beyond one year from the date of payment of 15% advance.
2. Interpretation of condition 3(e) of Notification No. 40/12-ST regarding the timeframe for filing refund claims.
3. Validity of refund claims based on payment dates and documentation.
4. Admissibility of refund claims based on the actual date of payment of service tax to the service provider.

Analysis:
1. The appeals by the Revenue were against the Order-in-Appeal allowing refunds of specific amounts to the respondent. The original authority rejected the refund claims due to filing beyond one year from the payment of 15% advance. The Commissioner (Appeals) partially allowed the refunds, leading to the Revenue's appeals.

2. The Revenue argued that the refund claims violated condition 3(c) of Notification No. 40/12-ST by being filed after one year from the advance payment. The respondent contended that condition 3(e) required the one-year period to be calculated from the actual payment of service tax to the service provider, not from the advance payment date. The Ld. Commissioner (Appeals) agreed with the respondent's interpretation, allowing the refunds.

3. Detailed examination by the Ld. Commissioner (Appeals) revealed that the refund claims were indeed filed within one year from the actual payment of service tax to the service provider. The invoices showed adjustments for advance payments, and the service tax was charged on the net cost after deducting the advance. The appellant provided detailed charts and documents to support the payment dates, including vouchers and bank statements. The Ld. Commissioner (Appeals) found the claims to be substantiated by evidence and allowed the refunds accordingly.

4. The Ld. Commissioner (Appeals) carefully analyzed the facts and determined that the refund claims were within the one-year period stipulated in Notification No. 40/12-ST. The refunds were based on the actual dates of service tax payments to the service provider, not the advance payment dates. The impugned orders were upheld, emphasizing the correct reckoning of the one-year period from the service tax payment dates. The Revenue's appeals were dismissed, affirming the validity of the refund claims within the prescribed timeframe.