TaxTMI 
TaxTMI 
2025 (6) TMI 683
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....ide assistance in production of live video coverage of sports events by IMG UK, by procuring various services and arranging facilities from third parties such as transportation, travel, hotel etc whenever required and making payments to third parties, on cost plus markup. IMC India raised 5 invoices on IMG UK for expenses incurred with markup under taxable category of BAS of the Finance Act for the period April 2010 to September 2010. IMC India deposited service tax amounting to Rs.51,83,156/- on 05.06.2010 under reverse charge mechanism and thereafter, IMC India received remittances from IMG UK. Subsequently, IMC India came to know that service provided to IMG UK qualifies as export of service under the Export of Services Rules and is not exigible to service tax; accordingly, IMC India filed refund application dated 30.03.2011 with Assistant Commissioner, Service Tax Division, Gurgaon, seeking refund of Rs.51,83,156/- paid under Section 11B of the Central Excise Act, 1944 as made applicable to service tax in terms of Section 83 of the Finance Act, 1994. Thereafter, IMC India followed up the matter with the Assistant Commissioner for more than two years but the refund was not disbu....
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.... cannot be denied on account of procedural infractions, if any. For this submission, he relies on the following decisions: * Cochin International Airport Limited vs. CCE & ST, Cochin - 2021 (51) GSTL 322 (Tri. Bang.) * Metlife Global Operations Support Center P. Ltd. Vs. CST, New Delhi - 2021 (46) GSTL 418 (Tri. Del.) * Harman Connected Services Corporation India Pvt Ltd vs. Cen. Tax, Bengaluru East - 2021 (49) GSTL 11 (Tri. Bang.) * Bharat Electronics Ltd vs. CC, Bangalore - 2017 (352) ELT 245 (Tri. Bang.) 4.4 The learned Counsel further submits that both the authorities below travelled beyond the show cause notice/Deficiency Memo, which is fatal to entire proceedings and the impugned order is liable to the set aside and the refund claim ought to be ordered to be sanctioned and disbursed along with interest. In this regard, he relies on the following decisions: * MIV Logistics Pvt Ltd vs. CC, Cochin - 2020 (374) ELT 277 (Tri. Bang.) * Hindustan Aeronautics Ltd vs. CC, Bangalore - 2019 (370) ELT 699 (Tri. Bang.) * CCE, Nagpur vs. Ballarpur Industries Ltd - 2007 (215) ELT 489 (SC) * CC, Mumbai vs. Toyo Engineering India Limited - 2006 (201) ELT 513 (SC) * Caprihan....
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....finition of 'export of services' and therefore, it was not subject to service tax, but the appellant had paid service tax wrongly and later on, the appellant came to know about this mistake and then filed refund claim which was rejected by the authorities below. 8. Further, we find that in the present case, the appellant is seeking the refund of Rs.51,83,156/- paid under Section 11B of the Central Excise Act as made applicable to service tax in terms of Section 83 of the Finance Act. We also find that the appellant had filed the service tax returns and showed that they had paid the service tax under the category of BAS but those self-assessed service tax returns had not been modified by them before filing the refund application. 9. Further, we find that the identical issue has recently been considered by the Principal Bench of this Tribunal in the case of Kalyan Toll Infrastructure Ltd (supra), wherein the Tribunal has rejected the appeal of the assessee by following the judgment of the Hon'ble High Court of Delhi in BT (India) Pvt Ltd (supra)'s case. Relevant findings of the Tribunal in Kalyan Toll Infrastructure Ltd (supra)'s case are reproduced herein below: "11. We have con....
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....assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re- assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by thi....
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....nsidering an application for grant of refund neither sits in appeal nor is it entitled to review an assessment deemed to have been made. In fact, the Supreme Court in ITC Limited had described refund proceedings to be akin to execution proceedings. 18. Thus, the legal position is loud and clear. Refund proceedings are in the nature of execution proceedings and they cannot modify an assessment including self- assessment. Refund can only be sanctioned or denied as per the assessment- be it self-assessment by the assessee or the best judgment assessment by the officer. This legal position will not and cannot vary depending on which side it favours. The law laid down in ITC Ltd. and BT (India) Pvt. Ltd. applies whether the claimant will get refund as a result or will be denied refund as a result. In neither case can the refund, which is in the nature of an execution proceeding be used to alter the assessment. Thus, the order of the Larger bench of this Tribunal in Balaji Warehouse interpreting the applicability of ITC Ltd. to service tax matters relied upon by the appellant has been clearly overturned by the High Court of Delhi in BT (India) Pvt. Ltd. Clearly, ITC Ltd. applies to ser....