9911796707
TMI Blog2015 (12) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... at Pune, particularly when the Service Tax by M/s. IDSPL was also paid in Pune only. - respondent's Pune office has right to claim at Pune only, therefore the claim is not without the Jurisdiction. It is also not the case of the Revenue that the same refund either claimed by the respondent's Delhi office or by another person. Since the service tax was erroneously paid the same has to be refunded and M/s. IDSPL has given the disclaimer, only right to claim the refund is with respondent only. - infirmity therein. Accordingly, the impugned order has to be sustained - Decided against Revenue. - Appeal No. ST/85375/15 - Final Order No. A/3725/2015-WZB/STB - Dated:- 24-11-2015 - P. S. Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellant : Shri D Nagvenkar, Addl Deputy Commissioner (AR) For the Respondent : Shri Prashant Patankar, Consultant ORDER Per Ramesh Nair This appeal of Revenue is directed against Order-in-Appeal No. PUN-EXCUS-001-APP-082-14-15 dtd. 30/09/2014 passed by the Commissioner (Appeals) Central Excise, Pune-I, wherein the Ld. Commissioner (Appeals) set aside the Order-in-Original No. PI/STC/R/41/2013 dated 24/7/2013 and allowed the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hand, Shri Prashant Patankar, Ld. Consultant for the respondent submits that in the present case undisputed facts is that IDSPL paid service tax in Pune and raised invoice to respondent. The respondent paid service charges alongwith service tax to M/s. IDSPL. The respondent as a recipient claimed the refund of the Service tax which was admittedly borne by respondent. Invoice was issued in the name of same entity at their Delhi office, however being one single entity, the books of accounts, trial balance etc. is common and it has been seen by the lower authority that service charges as well as service tax paid by the respondent has been accounted for in the books of Respondent. In this position even though the invoice was raised to the recipient at Delhi office merely for that reason refund cannot be denied. It is not in dispute that the service tax was paid by M/s. IDSPL and same was born by the respondent and payment thereof was made to the service provider M/s. IDSPL. It has been admitted by the Revenue that Business Transfer' fees on which service tax was paid is not taxable, therefore in any case the service tax paid is not service tax which cannot be retained by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered office and the same is not different entity, it is integral part and parcel of the one company of the respondent. The respondent having centralized registration at Pune, have correctly lodged their claim at Pune, particularly when the Service Tax by M/s. IDSPL was also paid in Pune only. It is settled legal position that even though the refund claim is lodged in a different jurisdiction the same cannot be rejected only for want of right Jurisdiction. The only aspect has to be ensured that refund should not be claimed by more than one person which is not the case here. In the present case we are of the clear view that the respondent's Pune office has right to claim at Pune only, therefore the claim is not without the Jurisdiction. It is also not the case of the Revenue that the same refund either claimed by the respondent's Delhi office or by another person. Since the service tax was erroneously paid the same has to be refunded and M/s. IDSPL has given the disclaimer, only right to claim the refund is with respondent only. On going through judgments cited by the Ld. Counsel, we find that ratio of all the cited judgments are applicable in the present case. On going thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services were actually received at Delhi office (para 31 of the Order-in-Original). Instead in para 35 of the impugned Order-in-Original it is observed that the documents such as trial balance and bank statement shows only the name of the company viz. M/s. Fujistu Consulting India Pvt. Ltd. and do not specify location of the company. Thus it is unclear whether these documents are of Pune of Delhi'. In view of these observations in the Order-in-Original, I find that the Adjudicating Authority is not sure of their claim that the services were received by the Appellants at Delhi office. Further, the Appellants have obtained centralized Service Tax registration. As such it is not relevant to verify the location of utilization of services. Moreover, the activity not being taxable under the Act, it is not necessary to verify the place of utilization of the service or whether the said unit was registered or not, as long as the payment of the amount as Service tax is not under dispute. It being accepted fact that activity was not taxable under the Act, the amount paid service tax becomes deposit with the Government that cannot be retained by the Deptt. The only ground for rejection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of higher appellate authorities wherein while deciding the dispute regarding admissibility of Cenvat credit the higher appellate authorities have observed that the incorrect address cannot be the ground for denial of Cenvat credit as long as the duty payment is not under dispute and substantive benefit cannot be denied for procedural lapse. The ratio of these decisions is applicable to the matter under consideration, for, had the impugned service been taxable under Finance Act, the Appellants would have availed the Cenvat Credit of the Service tax paid by the service provider, the refund claim has been filed because the service is not covered under Sec 65 (105) of the Act as taxable and thus the amount paid as Service tax is not liable to be paid. 8. In view of the observations and findings herein above, I set aside the Order-in-Original No. PI/ST/R/41/2013 dated 24-07-2013 passed by the Deputy Commissioner (STC), PUne-I Commissionerate and allow the appeal filed by the Appellants. On going through above findings, we do not find any infirmity therein. Accordingly, the impugned order has to be sustained. We therefore upheld the impugned order and dismiss Revenue's ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
