2016 (9) TMI 187

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....entered into agreements with various companies for financing their customers and receive commission/incentive.  One dispute relates to the commission of Rs.  1,54,52,808/- received as consideration between 1st October 2006 and 31st March 2009 on which the appellant was alleged to be liable to tax of Rs.  18,98,133/- for rendering 'business auxiliary service' taxable under section 65(105)(zzb) of Finance Act, 1994.  On confirmation of this demand  against which Rs. 9,71,341/- paid by the assessee as tax for providing 'support service of business or commerce', both assessee and Commissioner of Central Excise, Aurangabad filed appeals before Commissioner of Central Excise & Customs (Appeals), Aurangabad. The appellate ....

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....first instance. A second appeal before us merges the order of the lower authority within the order of first appellate authority. Setting aside of the order of Commissioner (Appeals), ipso facto, restores the original order. Alteration of that order is beyond our jurisdiction in view of the jurisdiction conferred on Commissioner (Appeals) under section 128. The framing of an appropriate prayer in appeal before us is a matter of utmost import.  We, therefore, propose to restrict our decision only to the first prayer. 3. The other appeal, that of assessee, challenges order no. AGS(36)124/2010 dated 22nd February 2010 of Commissioner of Central Excise & Customs (Appeals), Aurangabad which concurred with the rejection of their claim for re....

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....efund claim was preferred, concluded that tax paid as provider of 'support service of business or commerce' was indeed payable  as provider of 'business auxiliary service' and that payment  having been made under one category of taxable service does not entitle the assessee to refund when tax had not been paid under any other head. Consequently, the refund claim was rejected. On appeal, Commissioner (Appeals) dismissed the plea of assessee to allow the refund. 5. Before proceeding to unravel the tangled threads of the above narration, the eventual status of the first demand for tax issued on 3rd June 2008 for Rs. 12,19,779/- must be recorded. That matter, having been confirmed vide order dated 13th July 2009, was set aside in app....

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.... that tax was being paid by assessee at least after investigation commenced. The show cause notice leading to the impugned order, against which Revenue is in appeal, details payments up to 2008; though there is no information about tax paid thereafter under a head other than 'support service of business or commerce', the notice does admit that returns were being filed till 2009.  In any case, the demand was set aside on the ground of being time-barred and the balance, if any,  of tax to be recovered is relevant only if that bar no longer holds good.  We note that a show cause notice invoking the extended period from 2003 to 2006 was issued in June 2008.  On very same set of facts, but for a later period, was the show cau....