TaxTMI 
TaxTMI 
2008 (7) TMI 82
X X X X Extracts X X X X
X X X X Extracts X X X X
....fore the Hon'ble High Court of Karnataka against sanction of refund pertaining to earlier period to the appellant, but despite having reasonable period thereafter, the department has not obtained, and/or produced-any stay in the above appeal. Fleece, in the absence of any bar or restriction, I have no option but to proceed with taking decision on merits. 12. I have carefully gone through the records of the case, the grounds of appeal and all the submissions of the appellant made at the time of personal hearing held on 29.01.2007 before my predecessor and on 11.05.2007 before me. 13. The issue to be decided in this appeal is refund of an excess payment of service tax made by the appellant, on the basis of billed amount, which is subsequently not realised/collected owing to default in payments by credit card holders. 14. I find that the appellants have filed IS refund claims under Section 11B of the Central Excise Act, 1944, for the period April 2002 to June 2003 involving Rs. 2,41,94,382/- averring that- (i) the Service Tax provisions provide that Service Tax has to be paid to the government collection of the same from customers to whom the taxable services have been pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce tax claimed as refund from any other person. 19. I find that the appellants have duly made an application for refund and submitted to the proper authority within the stipulate time period of one year from the date of excess payment. The application is required to be accompanied by documentary evidence to the effect that the amount claimed as refund is the amount actually paid by them in excess of the service tax due and the incidence of such tax claimed as refund has not been passed on to any other person. 20. Normally the records/ or photocopies of such records evidencing the transactions wherein the date, services rendered, quantities, values involved, taxes involved, proof of payment of taxes etc. are required to be enclosed as proof to enable the authority granting refund to decide the refund claim. 21. In the instant case the core of the various evidence submitted are in electronic form, i.e., a compact disc (CD) containing the data of credit card transactions that can be viewed only on a computer, and have submitted copies of sample transactions to drive home the point, the way in which the accounting is done. It is said that the volume of transactions are huge an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t collections made from the default customers. (vii) Details of subsequent adjustment of refund in case where recovery is made in default cases and (viii) Out put database files (service tax refund amount claimed) with the application for refund filed/to be filed with the Central Excise authorities. 26. The auditors also have elaborated the process of computing the refund amounts, i.e. 1. The card number wise data for service tax billed and adjusted is maintained. 2. The net amount service tax billed and adjusted for a particular month is mapped with the card numbers that have been charged off. 3. The matching is done based on card number and the lesser of the two amounts i.e., service tax paid or amount charged off is taken as the figure which has not been collected from the customers but which has been paid to the Government. 4. The card numbers and amounts arrived at in (3) above are further matched with the recovery base. The total base of service tax claimed is also matched against the recovery base for the month. The entire amount of service tax paid to the Government on those cards is treated as recovered. 5. The net of the two i.e., the amount calcul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ayable on the actual amount realised by the service provider. In other words, if the amount is not realised in respect of any services provided the assessee is not required to pay any service tax and if any such tax is paid on such unrealized amount, the same has to be treated as excess payment liable to be refunded, which facts of circumstances are applicable in the instant case. Accordingly, I find no merits in the impugned order-in-original and pass the following order. ORDER I set aside the order-in-original No. 64/2006 dated 27/28.03.2006 passed by the Assistant Commissioner of Service Tax, Division-I Bangalore and allow the appeal filed by M/s. Standard Chartered Bank, India Bank Card Centre, Bangalore with consequential benefit. 2. The Revenue's contention is that the assessee had got themselves registered at Mumbai. Although they had made their payments of Service Tax at Bangalore yet the jurisdiction for filing refund claim arising at the place of registration. It is also stated in the grounds of appeal that the Commissioner (A) had committed error in allowing the refund claim when the refunds are barred by Principles of Unjust Enrichment. It is stated that mer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to unjust enrichment is concerned, we are of the considered opinion that the Commissioner (A) has clearly examined the issue and it was not necessary for him to examine each and every entry to overrule the plea of unjust enrichment. He has given clear findings as extracted supra about the process of computing the refund amounts. He has given reasons as to how the refund is eligible for the assessee in the light of the West Region Bench judgment rendered in Final Order Nos. A/257-258/WZB/2007/CSTB/G dated 29.3 .2007, in the department's case against the assessee in an identical matter of refund. He has noted that the issue of unjust enrichment has also been dealt in the light of the Tribunal's decision in the case of Prachai Communications Limited - 2006 (76) RLT 413 (CESTAT-Mum.) = 2006 (2) STR 492 and this Bench ruling rendered in assessee's own case reported in 2006 (3) STR 751 (Tri.-Bang.). The findings recorded in Paras 4 and 5 of this Bench's order is reproduced herein below. 4. Shri A.R. Krishnan, the learned Chartered Accountant, appeared for the respondents and he urged the following points: (i) Revenue has raised two grounds against the OIA. One is regarding the no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Tribunal. In these circumstances, the Assistant Commissioner has to implement the Commissioner (Appeals)'s order. Moreover, the issues before the Commissioner (Appeals) in the impugned order were only grant of refund by way of cheques and relief in respect of the amounts rejected by the lower authority on account of time bar. Therefore, he was not expected to go into matters, which were not raised before him. The respondents have produced case-laws to show that appeal by department before Tribunal is not maintainable on a new ground which was entirely new from the one taken by the department before Commissioner (Appeals). The Supreme Court, in the case of Warner Hindustan Ltd. Vs. Collector of Central Excise, Hyderabad - 1999 (113) ELT 24 (SC) held that it is not permissible for the Tribunal to consider a case laid for the first time in appeal. In any case, on going through the records, we find that the refund itself has arisen on account of the fact that the respondents discharged Service Tax liability on the billed amount while what they received from their customers was much less. In these circumstances, there cannot be any unjust enrichment. Hence, the Revenue's appeal ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... order passed by the original authority. 5. Being aggrieved by the order passed by the Commissioner of Central Excise, the revenue filed an appeal before the Tribunal. The Tribunal after considering the order passed by the original authority as well as the order of Commissioner of Central Excise held that the Commissioner of Central Excise was justified in allowing the appeal as the compact disc produced by the assessee was admissible and the certificate produced by the assessee from its Chartered Accountant would satisfy the claim. Accordingly, the appeal of the revenue has been rejected. Being aggrieved by these two concurrent findings, the present appeal is filed raising the aforesaid two questions. 6. So far as the 1st question is concerned, on facts both the authorities have held that the refund claim made by the assessee satisfy the grounds to allow the refund. Therefore, it is a question of fact and not a question of law. Hence, we have to answer question No. 1 against the revenue. 7. So far as the second question is concerned, such a question was not urged by the revenue before the Tribunal. When such a question was not urged by the revenue before the Tribunal, we ....