TaxTMI 
TaxTMI 
2015 (6) TMI 510
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.... Ltd. while providing telecom services sold recharge vouchers (RCV) to distributors at a discount to the printed MRP (maximum retail price) which is clearly indicated in the sale invoices raised on the distributors. For the month of November 2005, service tax was paid by them on the prepaid RCVs, by considering the MRP printed on the RCVs as cum tax price. But since the value realised on sale of RCVs was less than the MRP, they claimed refund of excess service tax paid. The Assistant Commissioner sanctioned the refund amount. In revision proceedings, the Commissioner in passing the impugned order relied on section 84 of the Finance Act 1994, before its substitution on 19.08.2009 which reads as under: "Revision of Orders by the Commission....
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.... from the relevant date. In the present case the refund order was passed by the Assistant Commissioner on 9.7.2008 whereas the show cause notice for recovery was issued in terms of Section 84 read with Section 73, on 25.2.2010 and which culminated in the impugned order of Commissioner. There being no circumstances for applying the extended period of limitation of five years, the Commissioner held that the show cause notice dated 25.2.2010 issued for recovery in terms of Section 84 is beyond the prescribed period of limitation of one year and therefore no recovery can be effected under the show cause notice. 3. Heard both sides. 4. The learned AR appearing on behalf of Revenue reiterated the points set out in the appeal. The AR tried t....
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....rs. ii) as the MRP includes the incidence of service tax payable on the RCVs, the burden of service tax element is passed on to the customers/subscribers. And therefore the refund has resulted in unjust enrichment to the respondent iii) in terms of sections 73A, the service tax collected from any person should be deposited with the Central government. Therefore the sanctioning authority erred in holding that the respondent have neither charged nor collected the extra amount representing service tax from their distributors. 6.2 The ld AR contended that the erstwhile section 84 must be read with the substituted Section 84 effective from 19.08.2009. We find this argument faulty and to be rejected straightway. The period of dispute is ....
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....hority. 6.4 The learned AR argued that if such a view is taken it would render clause (5) of section 84 otiose. For the sake of convenience, we reproduce clause 5 below: "no order under this section shall be passed after the expiry of two years from the date on which the order sought to be revised has been passed". We find no contradiction between clause (1) and clause (5). The latter clause merely says that the revision proceedings initiated by the Commissioner must be completed by passing an order within two years from the date on which the order sought to be revised has been passed. In this case the order sought to be revised was passed on 9.07.2008 and therefore order of Commissioner is required to be passed before 8.7.2010 whi....