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TMI Blog2016 (12) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... of the correct amount of service tax already passed on by the appellant to the ultimate subscribers which may be refunded in cash - Where such evidence has not been produced, the original authority will credit such amounts to the Consumers Welfare Fund - appeal allowed by way of remand. - Appeal No. ST/50110/2016-ST [SM] - Final Order No. 55820 /2016-CU (SM) - Dated:- 14-12-2016 - Shri V. Padmanabhan, Member (Technical) Sh. Chandan Kumar, Advocate for the Applicants Sh. S. Nunthuk, AR for the Respondent ORDER Per V. Padmanabhan The present appeal is directed against the order dated 23.10.2014, passed by the Commissioner (Appeals), New Delhi. M/s Mahanagar Telephone Nigam Ltd., (hereinafter referred to as the Appellant) having their corporate office at Room no. 1210, 12th Floor, 124, Jeevan Bharti Building, Tower -1, Connaught Circus, New Delhi- 110001 and having their Unit Office at DGM (TRA), 4th Floor, Telephone House, Prabha Devi, Dadar (W), Mumbai-400028 (hereinafter referred to as M/s MTNL ) are engaged in the business of establishing and extending telephone lines to its subscribers in the city of Mumbai. The appellant joined Large Taxpayer Unit (herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir OYT scheme and paid the same to the Department. 4. Being aggrieved, one of the subscribers, namely Shri Sanjay R. Kothari, filed a Writ Petition no. 2501 of 1994 in the High Court of Mumbai (here in after referred to as the court ) pleading that under the said OYT scheme he had made a lump sum initial payment of ₹ 5,000/- for the rentals for a period of twenty years and accordingly, he was entitled to a reduction of ₹ 40/- from his bi-monthly rentals of ₹ 380/-. Therefore, Service Tax should have been charged on ₹ 340/- but not on the gross amount of ₹ 380/- as charged by the appellant, who was made the only Respondent in the case. 5. The appellant, vide their fax letter dated 24.02.2011, forwarded a copy of the Final Judgment of Bombay High Court passed in the Writ petition no. 2501 of 1994 to Service Tax department. The Hon ble Court, in its judgment dated 21.12.2010 held that since the OYT rebate is a reduction in rental, Service Tax should be levied only on net amount. Further, the appellant submitted that the Hon ble Court had earlier passed an interim stay order dated 21.11.1994 restraining the MTNL Mumbai from claiming Service Tax on gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to the subscribers so as to comply with Bombay High Court s Order dated 21.12.2010. Hence, the appellant requested the Department to refund an amount of ₹ 35,50,320.28/- collected on account of Service Tax collected on OYT Rebate during the period from 01.07.1994 to 31.03.1995; otherwise, the same would be adjusted against next payment of Service Tax. 12. The Department, again, vide letter dated 02.08.2012, advised the appellant to file refund claim in the prescribed Proforma along with relevant supporting documents. 13. The appellant, accordingly, on 31.08.2012, filed a refund claim dated 21.08.2012 in the prescribed Proforma alongwith relevant supporting documents for claiming a refund amount of ₹ 35,50,320.28 collected on account of Service Tax collected on OYT Rebate during the period from 01.07.1994 to 31.03.1995. 14. The appellant, vide their letter dated 13.09.2012, intimated that they had refunded the amount of Service Tax collected on OYT rebate during the period 01.07.1994 to 31.03.1995 to its subscribers by extending credit in the telephone bills for OPEN/DNP JUMPER status customers and that refund cheques were being issued to its surrendered cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned Departmental Representative for the Revenue. 21. The counsel for the appellant explained the facts of the case at length. He further submitted that the appellant will be entitled to refund in the light of the Tribunal decisions in the case of Hexacom vs. commissioner of Central Excise, Jaipur decided ST Final Order No. 8/2003-NB(A). In that case, Tribunal has held that payment, which did not relate to Service Tax at all and collected erroneously as representing Service Tax, can be refunded without application of the provisions relating to unjust enrichment. He further referred to the decisions of the Hon ble Supreme Court in this case A.P Power Coordination Committee and others vs. Lanco Kondopali Power Limited and others and submitted that in this case, the Hon. Supreme Court allowed relaxation in the time limit to cover the periods spent in arbitration. 22. The ld. Departmental Representative on the other hand submitted that refund of Service Tax is to be strictly decided in terms of the time limit specified under Section 11B. He relied upon the decisions of the Tribunal in the case of Hindustan Petroleum Corporation Ltd. Vs. CCE, Mumbai II [2015(317) ELT 379 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions of the apex court. In the present case, the Hon. Supreme Court decided the matter on 4.7.2012. Upon such a decision of the apex court, the earlier decisions of the Hon ble Bombay High court would stand merged with the decision of the apex court. The relevant date applicable in the present case is given under Section 11B, Explanation (B) (ec) which is given below: Relevant date means (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction,. The refund claim in the present case finally stands settled only with the order of the apex court. Hence, I am of the view that the date of the judgment of the Hon. Supreme Court is to be considered for determining the relevant date in this case i.e. 4.7.2012. The refund claim stands filed on 21.8.2012, which is within a period of 1 year as permitted under Section 11(B). Hence, I am of the view that the claim is filed in time. 27. Section 11B also mandates that the refund can be paid in cash only after passing the test of unjust enrichment. The lower authorities have re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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