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TMI Blog2024 (10) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... hat too for the very same assessee. In our view, the issues have been dealt with by the lower authorities in a most casual way. Time and again it has been repeated through various judicial precedents that the revenue cannot be permitted to adopt an inconsistent stand in a subsequent assessment where the facts are identical unless there is change in law. None of the authorities below have considered it proper to even address the submission on behalf of the appellant regarding the earlier orders of the Adjudicating Authority granting refund for the same service. That becomes relevant when no appeals have been preferred by the revenue against the said order. The revenue cannot be permitted to adopt an inconsistent stand in subsequent proceedings when the facts are identical unless they show that the law has changed but nothing of that sort has been attempted. The authorities below have failed to base their decision of rejecting the refund claim on any change in law or circumstance, rather they ignored the said submission on behalf of the appellant - also, w.e.f. 1.7.2012 substantial changes by way of amendment have been affected in the Finance Act as well as in the Service Tax Rules a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory of Advertising Agency Service which qualified as export of service as per Rule 6A of Service Tax Rules, 1994 r/w Rule 3 of Place of Provision of Service Rules, 2012 (hereinafter referred to as PoPS ) and therefore the said amount of service tax is liable to be refunded to them as no tax was payable on export of services. The Adjudicating Authority vide Orders-in-Original of different dates, rejected all the refund claims and based upon the documents submitted by the appellant, recorded the finding that the appellant is engaged in facilitating a provision of service directly to its customers on behalf of their client, who are many times located in India, as detailed in the Intercompany Work Order (IWO) documents submitted by them and therefore the service provided by them is intermediary service which cannot be treated as export of service as per Rule 9 (c) of PoPS and accordingly is chargeable to service tax as per the provision of Section 66B of Finance Act, 1994 and the question of refunding of tax paid does not arise. It has also been observed by the Adjudicating Authority that otherwise also the service tax paid by the appellant have already been recovered by them from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as intermediary service since the definition of intermediary as provided u/r. 2(f) of PoPS does not include the person who provides the main services on his own account. According to learned Counsel merely because the services are sub-contracted by the overseas entity to the appellant and are directly provided by the appellant to the customers/clients of the overseas group company, would not alter the capacity in which these services are performed by the appellant. The recipient of services herein is the overseas group company who obligated to pay to the appellant. According to learned Counsel the only premise on which the services have been classified as intermediary services is the fact that the appellant directly interacts with the clients/advertisers of the overseas group company. So far as the issue about principle of unjust enrichment is concerned, learned Counsel submits that the said issue has not even been dealt by the learned Commissioner. She also submits that the said principle is not applicable in respect of export of service even if the duty has been passed on by them. Per contra learned Authorized Representative appearing on behalf of Revenue reiterated the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission on behalf of the appellant regarding the earlier orders of the Adjudicating Authority granting refund for the same service. That becomes relevant when no appeals have been preferred by the revenue against the said order. The Authorities below are free to reject the said submission, but at least some finding is required to be given. The revenue cannot be permitted to adopt an inconsistent stand in subsequent proceedings when the facts are identical unless they show that the law has changed but nothing of that sort has been attempted. 7. We place our reliance on the judgment of the Hon ble Supreme Court in the matter of BSNL v. Union of India; reported in 2006 (3) SCC 1, wherein the Hon ble Supreme Court while relying upon case of Radhasoami Satsang v. CIT 1992 (1) SCC 659, has laid down as under:- 15. The question in Radhasoami Satsang v. CIT [(1992) 1 SCC 659] (also cited by the State of UP.) was whether the Tribunal was bound by an earlier decision in respect of an earlier assessment year that the income derived by the Radhasoami Satsang, a religious institution, was entitled to exemption under sections 11 and 12 of the Incometax Act, 1961. The Court said: (SCC p. 666, par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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