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TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 820
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....al No. 26/2008 (H-III) ST, dt. 31.07.2008. Appeal No. ST/680/2009 is filed by Revenue against Order-in-Appeal No. 23/2008 (H-III)ST, dt. 30.04.2009 and appeal Nos. ST/246-256/2011 are filed by various assesses against Order-in- Appeal No. 12 to 22/2010 (H-III) (D)ST, dated 30.09.2010. 3. The relevant facts that arise for consideration in these appeals are produced in brief to understand the issue correctly. (a) In appeal No. ST/557/2008, the relevant facts are the respondent M/s Usha Kiran Movies Limited were alleged to have rendered the security agency services to their various sister concerns, big companies located within the premises of Ramoji Film City but did not pay service tax on the amount so received by them for the period from 01.04.2001 to 31.08.2005. On conclusion of the investigation conducted by DGCEI, a show cause notice was issued for the demand of service tax liability for the amount received as reimbursement of salaries of security personnel from their sister concerns. According to the Revenue, this amount recovered as reimbursement from the sister concerns is liable to tax under security agency services. (b) In appeal No. ST/558/2008, the facts are in contin....
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....he first appellate authority and the first appellate authority by impugned Order-in-Appeal Nos. 12 to 22/2010 (H- III)(D)ST, dated 30.09.2010 set aside the Order-in- Original on the grounds that appellants have not discharged the burden of unjust enrichment. 4. Ld. Counsel S/Shri M. Narayana Swamy Naidu and M.V.S. Sridhar appeared for the respondents in the departmental appeals and in the appeals of various appellants i.e. Usha Kiran Movies Limited and others while Ld. Commissioner, Ld. Additional Commissioner and Ld. Dy. Commissioner (A.Rs) appeared for the Revenue and other appellants. 5. Ld. Commissioner appearing for Revenue in Revenue's appeal Nos. ST/557 & 558/2008 submits that the respondent herein had rendered the security services to the units which are within the premises called as Ramoji Film City and has not paid the service tax. It is her submission that in appeal No. ST/557/2008, the services were of security while in appeal No. ST/558/2008, the services are Maintenance & Repair Service and Manpower Supply Services. It is her submission that the adjudicating authority had confirmed the demands raised but the first appellate authority had set aside the Orders-in-Orig....
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....expenditure actually incurred. He draws our attention to Page No. 22 of the Order-in-Original in page No. 49 of the departmental appeal. He would rely upon the decision of Hon'ble High Court of Gujarat in the case of Commissioner of Service Tax vs. Arvind Mills Limited as reported at [2014(35)S.T.R 96 (Guj.)] as also the decision of the Tribunal in the case of Reliance ADA Group Pvt. Ltd. vs. Commissioner of Service Tax, Mumbai in appeal No. ST/86341/2015 (unreported judgment downloaded from the website of CESTAT) and Sara Services & Engineers Pvt. Ltd. vs. CCE, Meerut [2009(13) S.T.R 177 (Tri.-Del.). 7. Ld. Additional Commissioner appearing for the department submits that they are contesting the order of the first appellate authority in this appeal wherein he has allowed the refund of an amount paid by the respondent without considering the provisions of Section 11B of Central Excise Act, 1944. It is his further submission that the Respondent herein had filed a refund claim based on the order of the first appellate authority in Order-in-Appeal No. 26/2008 (H- III)ST, dt. 31.07.2008. It is his further submission that the adjudicating authority has correctly rejected the refund cla....
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....se of Arvind Mills Ltd. (supra) in support of his claim. It is his further submission that in these cases, the adjudicating authority had sanctioned the refund claims but on appeal by the Revenue, the first appellate authority has set aside Order- in-Original. He would submit that appellants herein had submitted the Chartered Accountant's certificate before the adjudicating authority as well as first appellate authority which stated that all these appellants have borne the service tax amount paid by Usha Kiran Movies Limited and it is also his submission that the Director (Cost) was appointed by the Department to go into the factual position. It is his submission that the said Director (Cost) appointed by Revenue authorities, confirmed that the amount claimed as refund was borne by the respective clients. 10. Ld. DR reiterates the findings of the first appellate authority in these appeals. 11. We have considered the submissions made at length by both sides and perused the records. 12. Since all the appeals are inter linked to the issue which is in appeal Nos. ST/557-558/2008, we record our findings on these two appeals first. A) Appeal Nos. ST/557/2008 and ST/558/2008: 13.1 In....
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.... recruitment agency and we reproduce the relevant paragraphs of the judgment. "5. It is true that in the present form, the definition of Manpower Supply Recruitment Agency is wide and would cover within its sweep range of activities provided therein. However, in the present case, such definition would not cover the activity of the respondent as rightly held by the Tribunal. To recall, the respondent in order to reduce his cost of manufacturing, deputed some of its staff to its subsidiaries or group companies for stipulated work or limited period. All throughout the control and supervision remained with the respondent. As pointed out by the respondent, company is not in the business of providing recruitment or supply of manpower. Actual cost incurred by the company in terms of salary, remuneration and perquisites is only reimbursed by the group companies. There is no element of profit or finance benefit. The subsidiary companies cannot be said to be their clients. Deputation of the employees was only for and in the interest of the company. There was no relation of agency and client. It was pointed out that the employee deputed did not exclusively work under the direction of superv....
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....I)ST, dt. 30.04.2009 passed by the first appellate authority, sanctioning the refund claims filed by Usha Kiran Movies Limited when they received Order- in-Appeal No. 26/2008 (H-III)ST, dt. 31.07.2008 in their favour. The respondent had filed the refund claims before the authorities and the adjudicating authority has rejected the refund claim on the ground that the respondent had not passed the hurdle of unjust enrichment inasmuch, respondent had shown the amount deposited by them as expenditure in the books of account. The first appellate authority has set aside the said Order-in-Original by relying upon the various declarations filed by the sister concerns that they had not reimbursed the service tax amount to the appellant. 16. We find that in the Order-in-Appeal No. 26/2008, dt. 31.07.2008, the first appellate authority had set aside the demands raised on the ground that the services rendered by the respondent Usha Kiran Movies Limited would not be covered under taxable services in respect of the amount collected or charged by the appellant from various sister concerns towards security agency services. The said Order- in-Appeal No. 25/2008, dt. 31.07.2008 has been upheld by th....
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....The said Order-in-Appeal No. 26/2008 has been upheld by this Bench as stated herein above. In these cases, Usha Kiran movies Limited has not filed any refund claims and directed the sister concerns to file the refund claims. The said refund claims were allowed and sanctioned by the adjudicating authority. The first appellate authority in these cases has set aside the Order-in-Original by holding that the appellants had not been able to pass the hurdle of unjust enrichment. 18. On perusal of the records, we find that in these cases, specifically the question that arises is with regard to unjust enrichment. It is noticed from the records that the appellants herein had filed Chartered Accountant's certificate dated 26.03.2009 before the lower authorities. It transpires from the records that the department had appointed Director (Cost) for looking into the claim of these appellants and the said Director (Cost) vide his report No. V'Genl/1/72/2009/Dir-Cost, dated 28.08.2009 stated that the appellant herein had borne the amount charged by Usha Kiran Movies Limited. It is noticed from the Order-in-Appeal that the first appellate authority has summarily dismissed the claim of these appell....