TaxTMI 
TaxTMI 
TaxTMI 
2015 (12) TMI 1109
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....ment. In the said transaction IDSPL charged a transfer fee to the respondent on which Service Tax of Rs. 97,89,120/- was paid. The respondent subsequently realized that the 'Business Transfer' is not taxable service during material period i.e. in the year 2012 and the same was not leviable to Service Tax. Accordingly, respondent filed refund claim of erroneous payment of service tax of Rs. 97,89,120/- on 25/4/2013 under Section 11B of the Central Excise Act, 1944. A show cause notice dated 13/5/2013 was issued on the various discrepancies in the refund claim which was adjudicated by order in original dated 24/7/2013, wherein refund was rejected only on the ground that 'Business Transfer' invoice raised by IDSPL is in the name of M/s. Fujitsu, New Delhi, which was not included in the respondent's Service Tax registration. Aggrieved by the said Original Order, the respondent filed appeal before the Commissioner (Appeals). The Commissioner (Appeals) after consideration of submission made by respondent and personal hearing; set aside the Order-in-Original dated 24/7/2013 and allowed the appeal filed by the respondent, therefore revenue is before us. 3. Shri D. Nagvenkar, A....
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....for the reason that M/s. Fijitsu, New Delhi is not different person but registered office of the respondent and it is integral part of one legal entity i.e. Company of the respondent. He submits that this Tribunal in various cases held that irrespective of the Billing to any address of the assessee credit can be availed at a place where centralized registration exists. In this regard he relied upon following judgments. (a) Manipal Advertising Services Pvt. Ltd. Vs. CCE, Mangalore [2010 (19) STR 506 (Tri. Bang)] (b) Raaj Khosla & Co. Pvt. Ltd. Vs. C.S.T, Delhi [2008 (12) STR 627 (Tri. Del)] (c) Eveready Industries (I) Ltd. Vs. C.C.Ex, Allahabad [1998 (103) ELT 672 (Tri. Del)] (d) Gujarat Heavy Chemicals Ltd. Vs. C.C.Ex, Rajkot [2005 (192) ELT 658 (Tri. Mum)] He also relied upon judgments in case of Devasthan Vighag Vs. C.C.Ex. Jaipur-I [2008 (10) STR 415 Tri. Delhi)], wherein it was held that just due to different jurisdiction refund cannot be rejected. 5. We have carefully considered the submissions made by both sides. 6. We find that from overall facts and circumstances of the case denial of refund was boiled down to only one issue that Service Tax invoice issued by M/s. ID....
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....ve paid service tax on the said services under category of 'Information and Technology Services', Appellants have paid the entire amount to IDSPL including Service TAX, the entire amount is reflected as 'receivable from Govt.' in Appellants' trial balance duly certified by the Chartered Accountant, IDSPL has submitted a 'no objection certificate' to Appellants and the refund is not hit by unjust enrichment, Appellants have reversed the Cenvat Credit of the said Service Tax amount in their Cenvat account. I find that the Adjudicating Authority in para 33 of the Order-in-Original has clearly stated that the 'amount recovered and paid as the service tax on this transaction is erroneous payment of service tax and as such the claimant is eligible for the refund under Sec 11B of the C.Ex. Act, 1944'. Thus the admissibility of the refund on merits is accepted by the Adjudicating Authority after verifying all the essential factors of the claim. However, the claim is rejected only on the grounds that neither the service provider nor the buyer of the services falls under the jurisdiction of Pune-I Commissionerate. As such the only issue that needs to be sorted in this cas....
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....istered only as per the requirements of Companies Act. The said facts are recorded in para 15 of the impugned Order-in-Original as well. I find that Sec 11B of the Act neither proposes restricting the refund on account of jurisdiction nor it stipulates filing the refund claim in particular jurisdiction. The only preconditions specified under the said section are the duration for filing the claim and the clause of unjust enrichment. The Adjudicating Authority has referred to Sec 11B(2)(e) of the Act stating therein that in the instant case the services recipient is M/s. Fujistu New Delhi and service provider is IDSPL Bangalore. However, it is stated in Order-in-Original that the impugned amount is shown as 'receivable from Govt.' in Company's audited trial balance sheet (para 23 & 37 of the Order-in-Original). Since the payment of Service tax by the Appellants is not under dispute and since the said amount is shown as receivable in their books of account, it can be construed that the buyer/service recipient in this case is M/s. Fujistu India Pvt. Ltd. Thereby the transaction would be covered under Sec. 11B(2)(e) of the Act. Considering the fact that Sec 11B(1) does not restr....