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TMI Blog2008 (7) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... taka High Court judgment and the Tribunal ruling in Final Order Nos. A/257-258/WZB/2007/CSTB/C1 dated 29.3.2007 and other judgments to allow the refund claim by setting aside the Order-in-Original No. 64/2006 dated 27/28.03.2006. The findings recorded by him in Paras 11 to 30 are reproduced herein below:- 11. Before I take up the appeal for decision on merits, that the department has filed an appeal before the Hon'ble High Court of Karnataka against sanction of refund pertaining to earlier period to the appellant, but despite having reasonable period thereafter, the department has not obtained, and/or produced-any stay in the above appeal. Fleece, in the absence of any bar or restriction, I have no option but to proceed with taking decision on merits. 12. I have carefully gone through the records of the case, the grounds of appeal and all the submissions of the appellant made at the time of personal hearing held on 29.01.2007 before my predecessor and on 11.05.2007 before me. 13. The issue to be decided in this appeal is refund of an excess payment of service tax made by the appellant, on the basis of billed amount, which is subsequently not realised/collected owing to defaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt as per the provisions of Section 11B of the Central Excise Act, 1944, which is made applicable to service tax vide Section 83 of the Finance Act, 1994. Also, any amount of service tax paid in excess of the actual liability, is refundable, only if it is proved that the claimant of refund had already refunded such amount to the person from whom it was received or had not collected the service tax claimed as refund from any other person. 19. I find that the appellants have duly made an application for refund and submitted to the proper authority within the stipulate time period of one year from the date of excess payment. The application is required to be accompanied by documentary evidence to the effect that the amount claimed as refund is the amount actually paid by them in excess of the service tax due and the incidence of such tax claimed as refund has not been passed on to any other person. 20. Normally the records/ or photocopies of such records evidencing the transactions wherein the date, services rendered, quantities, values involved, taxes involved, proof of payment of taxes etc. are required to be enclosed as proof to enable the authority granting refund to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount payable as service tax. (iii) Details of Service Tax billed as per credit card for each of the services. (iv) Value of service tax billed as determined by the CCMS, which is posted to the general ledger of the Bank to 'Service Tax payable account', (v) Process of matching of the "Credit Card Written Off Account" and Service Tax paid account. (vi) Details of subsequent collections made from the default customers. (vii) Details of subsequent adjustment of refund in case where recovery is made in default cases and (viii) Out put database files (service tax refund amount claimed) with the application for refund filed/to be filed with the Central Excise authorities. 26. The auditors also have elaborated the process of computing the refund amounts, i.e. 1. The card number wise data for service tax billed and adjusted is maintained. 2. The net amount service tax billed and adjusted for a particular month is mapped with the card numbers that have been charged off. 3. The matching is done based on card number and the lesser of the two amounts i.e., service tax paid or amount charged off is taken as the figure which has not been collected from the customers but whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein, it has been held that the provisions of unjust enrichment as applicable under the central excise act and rules made there under do not apply in the service tax cases in as much as under central excise duty is required to be paid on raising the invoice/bill whereas under service tax provisions, the date of raising the bill or invoice is not at all relevant but it is only payable on the actual amount realised by the service provider. In other words, if the amount is not realised in respect of any services provided the assessee is not required to pay any service tax and if any such tax is paid on such unrealized amount, the same has to be treated as excess payment liable to be refunded, which facts of circumstances are applicable in the instant case. Accordingly, I find no merits in the impugned order-in-original and pass the following order. ORDER I set aside the order-in-original No. 64/2006 dated 27/28.03.2006 passed by the Assistant Commissioner of Service Tax, Division-I Bangalore and allow the appeal filed by M/s. Standard Chartered Bank, India Bank Card Centre, Bangalore with consequential benefit. 2. The Revenue's contention is that the assessee had got thems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted. 5. We have carefully considered the submissions. As regards the point pertaining to filing the refund claim under the jurisdiction of centralized registration is concerned, we find that the Board's Circular has been issued on 16.3.2007 subsequent to the period involved in this case. Therefore, this ground is negatived. 5.1 As regards the finding of the Commissioner (A) with regard to unjust enrichment is concerned, we are of the considered opinion that the Commissioner (A) has clearly examined the issue and it was not necessary for him to examine each and every entry to overrule the plea of unjust enrichment. He has given clear findings as extracted supra about the process of computing the refund amounts. He has given reasons as to how the refund is eligible for the assessee in the light of the West Region Bench judgment rendered in Final Order Nos. A/257-258/WZB/2007/CSTB/G dated 29.3 .2007, in the department's case against the assessee in an identical matter of refund. He has noted that the issue of unjust enrichment has also been dealt in the light of the Tribunal's decision in the case of Prachai Communications Limited - 2006 (76) RLT 413 (CESTAT-Mum.) = 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been passed on to the customers notwithstanding the issue of credit notes. The Central Excise cases cannot be blindly applied to the Service Tax matters. 5. We have gone through the records of the case carefully. In the present case, initially, the Commissioner (Appeals) granted relief to the respondents. Revenue's application for stay of the Commissioner (Appeals)'s order has been dismissed by the Tribunal. In these circumstances, the Assistant Commissioner has to implement the Commissioner (Appeals)'s order. Moreover, the issues before the Commissioner (Appeals) in the impugned order were only grant of refund by way of cheques and relief in respect of the amounts rejected by the lower authority on account of time bar. Therefore, he was not expected to go into matters, which were not raised before him. The respondents have produced case-laws to show that appeal by department before Tribunal is not maintainable on a new ground which was entirely new from the one taken by the department before Commissioner (Appeals). The Supreme Court, in the case of Warner Hindustan Ltd. Vs. Collector of Central Excise, Hyderabad - 1999 (113) ELT 24 (SC) held that it is not permissible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f transactions and its voluminous nature, by testing the cases at random, the Commissioner came to the conclusion that the assessee satisfied the genuineness of the claim. Contending that the original authority has committed an error in holding that the compact disc is inadmissible and did not consider a certificate issued by the Chartered Accountant, allowed the appeal of the assessee and set aside the order passed by the original authority. 5. Being aggrieved by the order passed by the Commissioner of Central Excise, the revenue filed an appeal before the Tribunal. The Tribunal after considering the order passed by the original authority as well as the order of Commissioner of Central Excise held that the Commissioner of Central Excise was justified in allowing the appeal as the compact disc produced by the assessee was admissible and the certificate produced by the assessee from its Chartered Accountant would satisfy the claim. Accordingly, the appeal of the revenue has been rejected. Being aggrieved by these two concurrent findings, the present appeal is filed raising the aforesaid two questions. 6. So far as the 1st question is concerned, on facts both the authorities have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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