TaxTMI 
TaxTMI 
2008 (5) TMI 68
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....rvices but the recharge vouchers had actually been sold to the distributors at a discounted price from the MRP and some recharge vouchers had also been distributed free of cost to distributors/operators. The claim was filed on the ground that the money value of the discount given on the recharge vouchers and that distributed free had not been received by the respondent and hence, service tax is not payable on these as per Explanation (2) of Section 67 of the Finance Act, 1994 and Rule 6 of Service Tax Rules, 1994. The said refund claim was rejected on the ground that the claim was partially time-barred under the provisions of Section 11B and also on the ground that the invoices submitted in support of the claim were of Reliance Communications Infrastructure Ltd. and not of the respondents i.e. Reliance Communications Ltd. (previously Reliance Infocomm Ltd.) and the respondents had not issued any invoices as service provider. It was held that the respondents did not submit any document, evidencing "sale" of the vouchers and finally the documents furnished along with the claim did not indicate the Service tax separately. On an appeal against such rejection of the refund claim, the le....
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....f the agreement to canvas that the arrangement between RCL and RCIL is only on sale between principal to principal. He submits that the unjust enrichment clause is also not satisfied inasmuch as that the financial records of both i.e. RCL and RCIL did not indicate that they have not been expensed out. It is his submission that whatever amount has been paid in excess was already recovered by passing on the incidence of duty to other persons. It was further submitted that the refund claim, which was returned by the Revenue can be taken on record only when all relevant documents are available. For this submission, he relies upon the Supplementary Instructions No. 2.4 of Chapter 9 of CBEC Supplementary Instructions Manual. He further submits that the said Supplementary Instructions has been upheld by the Hon'ble High Court of Delhi in the case of Faridabad Iron & Steel Traders v. Union of India as reported at 2002 (140) E.L.T. 378 (Del.). It is his submission that the such instructions are not in consist (sic) (inconsistent) with the provisions of Section 11B(1) because the said sub-section requires the refund application to be filed "in such manner as may be prescribed". It is the lea....
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.... there is no question of unjust enrichment as RCIL has raised invoices as an authorised person of service provider i.e. RCL. Hence, amount charged from the distributors being less than the denomination of the value of recharge coupon vouchers, they are eligible for refund of Service tax paid in excess. He submits that RCIL billed/invoiced distributors only for the discounted price hence, the question of passing on the burden of the Service tax either by the RCL to RCIL or by RCIL to the distributors does not arise. It is his further submission that this point was raised before the adjudicating authority and lower authorities did not dispute this. It is his submission that the lower authorities has not recorded that RCL had passed on burden of the tax to the customers, proves the point that question of unjust enrichment raised in the show cause notice was dropped and hence, the said question was not before the Commissioner (Appeals). Hence, this question cannot be raised by the Revenue before the Tribunal. 5.2 As regards the time-bar issue, it is his submission that the RCL filed refund application on 23-9-2005. The said refund application was returned to the respondent vide the le....
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....O and that the respondent had sold RCVs through M/s. RCIL. It is undisputed that the respondent is a service provider and engaged in the business of providing telephone services all over India. It is undisputed that the respondent had discharged the Service tax liability in this category for the various services provided by them. The refund claim submitted by the respondent on 23-9-2005 was returned back by the authorities on 21-12-2005 directing the respondent to submit evidences regarding the said refund claim. It is the contention of the learned Jt. CDR that once the claim has been returned on 21-12-2005, the subsequent resubmission of refund claim is to be considered as fresh refund claim. We do not agree with this proposition is an identical issue i.e. regarding returning of refund claim, was considered by the Hon'ble High Court of Gujarat in the case of United Phosphorus Ltd. (supra), wherein the Hon'ble High Court held as under "The applications show that they were made under Section 11B of the Central Excise Act, 1944. Under Section 11B of the Act, any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner....
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....e duty of the Assistant Commissioner to have considered the claim application and made an order thereon under the provisions of Section 11B of the Act, and the relevant rules. The impugned order dated 10-1-2003 is, therefore, hereby set aside with a direction that on presentation by the petitioners of the original application dated 20-12-2002 which was returned to them under the impugned order, that application shall be taken on record by the Assistant Commissioner and it shall be duly considered and an appropriate decision be taken thereon in accordance with law after giving adequate opportunity to the applicant to furnish proof, if any, in support of his claim. Rule is made absolute accordingly with no order as to costs." It can be noticed from the above reproduced portion of judgment, that in an identical situation, the Hon'ble High Court has held that returning the application claiming refund under Section 11B is contrary to the provisions of Act and the Rules. This decision is binding on us as Revenue has not produced any other contrary decision. 8. As regards the reliance placed by the Jt. CDR, on the case of Faridabad Iron & Steel Traders (supra) to canvas the point that t....
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....rship in any of the Proprietary Rights, Proprietary System, promotional advertising or other written material relating to the service, except for the right to use the same strictly in accordance with the terms and conditions of this Agreement. 7.4 In consideration for the compensation available for the marketing services of RCIL, as set forth in this Annexure A, RCIL agrees to distribute PCO and PPT cards without Additional Compensation and these cards shall be sold to RCIL at the rate at which they shall be sold to subscribers." (Emphasis supplied) The above said clauses in the marketing agreement are not disputed by the Revenue. The plain reading of the agreement brings out that RCIL is an agent and authorized person of RCL. If that be so, RCIL having raised invoices of RCL, it cannot be said that RCL is not a service provider. In this case, RCIL was authorized by RCL only to issue invoices on their behalf. RCIL has never issued invoices on their own name to the distributors. It is also undisputed that RCV was sold by the RCIL to the distributors at a value which is less than that is printed on them. If that be so, it is the fact that the RCIL has recovered only discounted valu....
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....onsideration by the authorities. We have held in the above para that the exact amount of refund claim, which is to be paid to the respondent requires to be recalculated, for which we have already held that the matter to be remanded back to the lower authorities. 11. As regards the unjust enrichment, we find that the respondent had in fact, in their reply, submitted how the doctrine of unjust enrichment does not affect them. We find that the adjudicating authority, while adjudicating the matter at the first instance did not record any adverse findings though being raised in show cause notice. This would mean that the adjudicating authority has held that there is no unjust enrichment. 12. The Revenue has not challenged the question of doctrine of unjust enrichment, not (sic) (nor) it was contested before first appellate authority, the Commissioner (Appeals), hence the said question cannot be raised before us. We also note that the learned Commissioner (Appeals) has considered the certificate given by the Chartered Accountant and the invoices, before arriving at the conclusion. We also find that the learned Commissioner (Appeals) has very clearly recorded that the respondent RCL and....