2013 (10) TMI 942

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...., the pre-deposit was made by GSIL and not by the appellant. Subsequently, the matter was ultimately decided in favour of the appellant and consequently appellant became eligible for the refund of Rs.2 lakh deposited as per the directions of the Tribunal. The refund claim was considered and sanctioned by the original adjudicating authority. On an appeal filed by the Revenue, the Commissioner (A) allowed the appeal and consequently the appellant is required to deposit the amount of Rs. 2 lakhs received by them as refund and appellant is seeking stay against recovery and waiver of pre-deposit. 2. After hearing both the sides for some time and after going through the impugned order and the records, I find that the issue itself can be decide....

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....IL) Annual Report for the financial year 2010-11. This categorically proves that the subject predeposit amount was paid by GSIL, but not by the respondents. (iv) In the said Certificate dt. 30.11.2011 of the Chartered Accountant, it was also mentioned that M/s. New Tech Stewing Telecom Limited (NTSTL) is a subsidiary company to GSIL. This clearly shows that the said two different limited companies being two different legal persons; were different at the relevant point of time. As already mentioned above, the subject predeposit amount was actually paid by GSIL, a different legal person, but not by NTSTL, the claimant. (v) As the respondents (NTSTL) had not paid the said amount, but was passed on GSIL, I hold that sanction of refund to ....

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....d passed on the full incidence of such duty to the buyer of the goods. 3.1 From the above, it can be seen that the Commissioner (A) has not accepted the claim on the ground that the money was not paid by GSIL and there was no evidence to show that the amount shown as receivables by GSIL included the amount of Rs.2 lakhs; further merger of subsidiary with GSIL took place only on 1.4.2008 and the appellant being different company could not have claimed the amount paid by their holding company and finally the possibility of treating the amount paid as an expenditure and passing on indirectly by loading it in the value of the goods/service supplied by them cannot be ruled out. 4. I am unable to agree with the learned Commissioner (A). Ong....