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TMI Blog2015 (11) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favour of the assessee, while the assessee is aggrieved on the ground that rejection of refund claims have been taken up for disposal and held against the assessee beyond the period of limitation as is prescribed under Section 73 (i) read with Section 84 of the Finance Act, 1994. 3. Heard both sides and perused the records. 4. The issue involved in this case is the assessee while providing telecom services during the period December 2005 to May 2006, sold recharge vouchers to distributors at a discount to the printed MRP indicated on the sale invoice cost on distributors. The assessee discharged the service tax on the pre-paid recharge vouchers by considering the MRP therein as cum-tax price, but as the value realized on sale of Rech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iewing the orders of the adjudicating authority. He would take us through the said provisions of Section and submit that the question of mixing the provisions of Section 73(i) of the Finance Act with Section 84 does not arise at all. 7. After considering the submissions made by both the sides, we find that the preliminary jurisdictional point raised by the learned Counsel would apply in this case. It is seen from the records that the show-cause notice which has been issued by the Reviewing Authority for reviewing the refund orders passed by the adjudicating authority was on 26.08.2010. The said show-cause notice was issued for reviewing the orders-in-original dated 25.02.2009 and 15.05.2009. We find strong force in the contentions raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hone services provided by the respondent to the customers/subscribers. ii) as the MRP includes the incidence of service tax payable on the RCVs, the burden of service tax element is passed on to the customers/subscribers. And therefore the refund has resulted in unjust enrichment to the respondent iii) in terms of sections 73A, the service tax collected from any person should be deposited with the Central government. Therefore the sanctioning authority erred in holding that the respondent have neither charged nor collected the extra amount representing service tax from their distributors. 6.2 The ld AR contended that the erstwhile section 84 must be read with the substituted Section 84 effective from 19.08.2009. We find this argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate on which the refund order was passed by the sanctioning authority. 6.4 The learned AR argued that if such a view is taken it would render clause (5) of section 84 otiose. For the sake of convenience, we reproduce clause 5 below: "no order under this section shall be passed after the expiry of two years from the date on which the order sought to be revised has been passed". We find no contradiction between clause (1) and clause (5). The latter clause merely says that the revision proceedings initiated by the Commissioner must be completed by passing an order within two years from the date on which the order sought to be revised has been passed. In this case the order sought to be revised was passed on 9.07.2008 and therefore order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation would render clause (5) of Section 84 completely nugatory and unworkable. We cannot agree with this apprehension. A harmonious reading of sections 73 and 84 lead to the conclusion that once the order passed in terms of section 84 holds that the refund was erroneously sanctioned, the recovery thereof can be effected only through the mechanism of section 73 (1). Naturally the time limits laid down in section 73 (1) have to be adhered to. Rather we find that if any other interpretation of a combine reading of Section 73 and erstwhile Section 84 is accepted, it would lead to an incongruous situation whereby every show cause notice for recovery of erroneous refund could be issued beyond the time stipulation of one year as long as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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