2023 (5) TMI 807

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d findings, the Order in Original No RN/R-419/2015-16 dated 29.10.2015 issued on 30.10.2015 passed by the Deputy Commissioner, Refunds, Service Tax-II, Mumbai (erstwhile) is modified and it is ordered that the refund claim for the period after 18.04.2006 be sanctioned to the appellant, M/s. BDR Pharmaceuticals International Pvt. Ltd. The appeal is allowed on above terms with consequential relief." 2.1 Appellant had filed an application for refund of service tax for Rs.12,24,492/- and interest of Rs.10,49,142/- as per Notification No. 41/2007-ST dated 06.10.2007 as amended by Notification No. 17/08-ST dated 01.04.2008. After scrutiny of the refund claim, show cause notice dated 21.08.2015 was issued to the appellant seeking rejec....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....on reverse charge mechanism was introduced by way of Section 66A of the Finance Act, 1994 w.e.f. 18.04.2006. Prior to that no service tax was payable on such services. Commissioner (Appeals) has held so. Accordingly he holds that whatever payments were made by them for the period prior to 18.04.2006 were voluntary payments and could not be independent to any other payments. It is settled law that the Revenue could not demand the amount of service tax and interest which was not leviable on the appellant. He relies upon the following decisions:- Bhandari Hosiery Exports Ltd. [2010 (20) STR J99 (SC)] Nestle India Ltd. [2010 (19) STR J16 (SC)] Unimark Remedies Ltd. [2014 (34) STR 31 (Guj.)] Shri Ra K....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... 31.03.2009 was not paid by the appellant and short paid by the appellant for the period 01.04.2009 to 06.07.2009 on foreign commission agent services under reverse charge mechanism. When this fact was brought to their knowledge in March 2014, the said amount was paid along with interest. It was also claimed that this amount was refundable to them as per Notification No. 41/2007-ST dated 06.10.2007 as amended by Notification 17/08-ST dated 01.04.2008 read with Section B of the Central Excise Act, 1944 as made applicable to service tax under Section 83 of the Finance Act, 1994. Therefore the appellant filed this refund claim. 4.4 Original authority has rejected the refund claim holding that the refund claim is barred by limitation. The ob....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....012 in para 8 above, the relevant date is much early but refund claim is actually filed on 15.07.2014. Though the claimant claims the date of payment of service tax (i.e. 03.03.2014) to be the "relevant date", I do not subscribe to this view. The reasons for this is amply elucidated in above para no.8 and mainly attributed to the fact that both notifications 41/2007 (amended vide 17/2008) and 41/2012 clearly spell out the "relevant date" to be calculated from Let Export Order date only. The refund claim filed under notn. No. 17/2008 read with Section 11B, is filed beyond the specified time limit of one year. In addition, certain procedural discrepancies as detailed in (i) to (iii) under this para, above persists and the claimant, by not fil....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ogical reason as to why the appellant should effect a payment of an amount which is not levied and evidently not due. I find such an act highly suspect especially since a refund of the said amount has been claimed. In absence of any credible rationale for this dubious payment, the refund claim of the appellant for the said period viz. prior to 18.04.2006 cannot be entertained." 4.6 The present appeal is basically challenging the observations made by the Commissioner (Appeals) in para 6.5 4.7 Once the Commissioner (Appeals) holds that there was no liability to pay service tax prior to 18.04.2006, then the refund claim should have been decided as per the provisions of Section 11B of the Central Excise Act, 1944. Undisputedly as noted by....