9911796707
TMI Blog2023 (6) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision is applicable in the given set of circumstances also. The phrase date of adjustment of duty shall be restricted only to the cases of provisional assessment of duty shall be a very narrow interpretation of the provision especially when provision foresees several possibilities and circumstances where the relevant date may vary. There are no reasonable prudence to deny extending the said phrase to the circumstance as the one in the question. Once no service no law authorizes payment of tax by the service provider. The refund of the service tax as was paid by the service provider after receiving the payments from service recipient, has to be sanctioned in full, due to this reason, by the department itself. With these observations, it is held that the refund claim in question is not barred by time. Whether the refund of duty which was paid by Cenvat credit is not maintainable? - HELD THAT:- The fact remains is that the total amount stands deposited with the department as the duty liability of the appellant. Once the appellant becomes no more liable for the duty as stands already deposited with the department. In view of the Article 265 of Constitution of India, department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with the service tax to M/s. IM Capital Limited. Since the appellant had discharged its service tax liability after receiving the amount from the buyer, pursuant to said refund to the buyer, the appellant applied for the refund of service tax. Accordingly, filed an application praying for refund of Rs.7,40,816/- on 21.10.2020 which was received in the jurisdictional Division Office on 21.01.2021. On scrutiny the department observed following discrepancies: (i) The party did not file refund claim within the stipulated time as per provision of Section 11B of the Central Excise Act, 1944. (ii) The party is not entitled for refund for the amount paid by Cenvat credit. (iii) Bifurcation of duty payment has not been provided which was made in the month of June-2015. Accordingly vide Show Cause Notice No. 153/2020-21 dated 13.08.2021, the aforesaid refund claim was proposed to be rejected. The said proposal has been confirmed initially vide the Order-in-Original No. 30/2021-22 dated 24.02.2022. The appeal filed against the said order has been rejected by Commissioner (Appeals) vide the Order-in-Appeal No. 21/2022 dated 14.11.2022. Still being aggrieved, the appellant is before this Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Such refunds have already been held to not been barred by time. Accordingly, order under challenge is prayed to be set aside and appeal is prayed to be allowed. 4. While rebutting these submissions, learned DR has mentioned that Section 11B of the Central Excise Act, 1944 does not come to the rescue of the appellant in the given facts and circumstances. The findings of Commissioner (Appeals) in Para 5.3 of the order under challenge are impressed upon, wherein the provision relied upon by the appellant is denied to be applicable in the given facts and circumstances. Learned DR further mentioned that in case the said findings are not accepted by the Bench, the matter still may be remanded back to the adjudicating authority as there is no finding with respect to rejecting the refund for such amount as was paid by the Cenvat credit. Appeal however is prayed to be dismissed. 5. Having heard the rival contentions and perusing the entire records, I observe and hold as follows: The issue herein is of the refund of service tax. Service tax is the liability to be discharged by the service provider for providing the requisite service after receiving the consideration along with the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines relevant date to have different meanings. Clause (eb) no doubt is for the cases where duty has been paid provisionally but to my understanding the interpretation of the provision is such that the provision is applicable in the given set of circumstances also. The phrase date of adjustment of duty shall be restricted only to the cases of provisional assessment of duty shall be a very narrow interpretation of the provision especially when provision foresees several possibilities and circumstances where the relevant date may vary. I see no reasonable prudence to deny extending the said phrase to the circumstance as the one in the question. 8. From the decisions relied upon by the learned counsel for the appellant and also from another decision of this Tribunal, Delhi Bench, vide Final Order No. 51646/2021 dated 25.06.2021 in the case of Ramesh Kumar Aggarwal, I observe that the issue is no more res integra. In Ramesh Kumar Aggarwal (supra), it was held as follows: 8. Coming to the plea of issue being barred by time, I hold that no doubt the service tax was deposited by the appellant on 4th October, 2016 and 24 October, 2016 and the refund claim has been filed on 7th May, 2018 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Tribunal, Mumbai in the case of Prachar Communications Ltd. v. CCE, Mumbai- IV reported as 2006 (2) STR 492 (Tri. - Mumbai) wherein it was held that when assessee paid back excess service by them to their customers, entitled to adjustment of same in term of Rule 6 of Service Tax Rules, 1994 and this having been done by them, they would be entitled of refund of excess taz paid by them. 12. In view of entire above discussion, it is hereby held that both the grounds taken by the Commissioner (Appeals) for rejecting the refund claim are held to be against the appreciation of the relevant facts of the present case. The order, accordingly, is hereby set aside. However, the appellant is directed to return the amount to Shri K.K. Agarwal within 15 days of receiving the said amount from the Department against the intimation thereof to the Department. The Department is held at liberty to take appropriate action, in case of non-compliance. Appeal, accordingly, stands allowed. 9. In the decision of this Tribunal, Ahmedabad Bench, in the case of Pramukh Realty vide Final Order No. A/10213/2022 dated 22.02.2022 also, it has been held that the refund filed by the provider of construction of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant also reveal that this issue is also no more res integra. 11. Finally coming to the request of learned DR about remanding the matter as Commissioner (Appeals) has not discussed the issue of denial of the amount paid by Cenvat credit. I observe that the original adjudicating authority has well discussed both the issues as were raised in the show cause notice while proposing the rejection of the impugned refund claim i.e.: (i) the refund being time barred and (ii) the refund for the amount as was paid by Cenvat credit for want of any proof of the bifurcation. 12. The original adjudicating authority since has dealt with both the issues, the said order gets merged with the Order-in-Appeal. I further observe that certificate issued by the Chartered Accountant of the appellant has also been placed on record to certify that the refund claim of service tax amount of Rs.7,40,816/- as was filed by M/s. New Modern Buildwell Private Limited, the latter has not passed on the burden of service tax on another person. Nothing is found on record to falsify that certificate. The presumption of correctness is otherwise attached thereto. In light of the said certificate, there is no reason to hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
