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TMI Blog2015 (10) TMI 2364X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/- and Rs. 8,72,339/- respectively. 2. The fact of the case is that the respondent M/s. Indiabulls Realtech Limited is co-developer of SEZ and received various services on which service tax was paid by the service provider. Respondent filed refund claim for Rs. 18,45,940/- and Rs. 8,72,339/- in respect of Service received by the SEZ developer in terms of Notification No. 40/12-ST dated 26/3/2012. The original authority rejected both refund claims on the ground that refund claim was filed beyond one year from the date of payment of 15% advance to the service provider and accordingly respondent has violated the condition of clause 3(e) of Notification No. 40/12-ST. The original authority also stated in the order that the respondent was supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed within one year from date of payment of service tax to the service provider. As regard the 15% of the advance payment, since service tax itself was not paid on that amount, question of taking date of said 15% does not arise. The fact remained that the refund was filed within one year from the actual date of payment to the service provider. Therefore it is well within the time and Ld. Commissioner considering this very fact, allowed the refund. 5. I have carefully considered the submissions made by both sides and perused the record. 6. I find from the facts narrated by the Ld. Commissioner (Appeals) that refund was filed within one year from the date of payment of service tax to the service provider, therefore it is well within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service is Rs. 12,24,753/- against which an advance of Rs. l,83,713/- was already paid. Hence, in this invoice an amount of Rs. 1,83,713/- (i.e. 15% of Rs. 12,24,753/- is deducted from. Rs. 12,24,753/- to arrive at net, cost of service for the purpose of charging the service tax and accordingly on the said net value i.e. Rs. 10,41,040/- (Rs. 12,24,753 - Rs. 1,83,713) service tax of Rs. 1,28,672/- is charged, (a) 12:36% in the invoice. It is also evident from, the above illustration that the service tax paid on the advance is not reflected, in the invoice and, therefore, no refund of service tax paid on advance is claimed by the appellant. 7.3 In order to prove payment of the amounts by the appellant as mentioned in the invoices, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Rs. 70 lakhs and on 03.01.2013 for Rs. 80 lakhs which included service tax of Rs. 17,80,316/-. To support their above claims the appellant has also submitted the relevant vouchers and bank statements showing the payments made to the service provider from which the fact of payment of service tax involved in these invoices is well established. 7.5 As the appellant had filed the refund claim within one near of the above referred two dates of payment on 12.07.2012 and 03.01.2013, filing of refund claim was entirely in time as envisaged in Notification. No. 40/2012-ST dated 20.06.2012 and, therefor, Deputy Commissioner's finding that refund claim is time barred is not found to have any factual or legal basis in respect of 21 invoices in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. It is observed that advance payment does not include the service tax whereas the payment subsequently made including service-tax. For example in case of appeal against order in appeal dated 25/11/2013 the service tax payment was made on 12/7/12, though the advance payment was made earlier to that but as per the condition laid down in the notification, the one year period has to be reckoned from the date of payment of service tax to the service providers. Therefore refund which was filed within one year from date of payment of service tax to the service provider is well within the one year period. Similarly in other appeal service tax was paid, on 1/2/2013 refund was claimed, within one year from that date. Considered the facts, identica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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