TaxTMI 
TaxTMI 
2025 (11) TMI 1552
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....al Commissionerate under Service Tax Registration No. AAECA3592NST001. Since the appellants have been receiving 'technology support service' from their group company M/s Avaya International Sales Limited, Ireland, they had paid applicable service tax on Reverse Charge Mechanism (RCM) basis by treating the same as import of service on 05.05.2017 and disclosed such particulars in their periodical service tax return filed with the jurisdictional service tax authorities. Further, as these services qualify as input service in terms of CENVAT Credit Rules, 2004, the appellants also took CENVAT credit of such service tax paid on RCM basis. Subsequently, at the time of finalization of annual accounts for the year ending 31.03.2017, the appellants have found that as per transfer pricing regulations, the amount of such technology support services received from their group company abroad was under reported to the extent of Rs.20,69,44,130/- and thus they paid the applicable service tax of Rs.2,89,72,178/- under RCM basis through GAR Challan dated 16.02.2018. Since, the said amount of service tax paid could not be transitioned into GST regime as input credit through TRAN-1 form procedure....
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....on the fact that the refund claim filed by them is covered by Section 11B ibid. Further, he stated that clause (d) of the proviso to Section 11B(2) ibid provides for refund to be paid in cash to the assessee, where the incidence thereof is proved to have not passed on. He further submitted, that there is no dispute on the fact that the incidence of duty is not passed on to any other person since the same has been paid by them on RCM basis, and that they had submitted a certificate of the Chartered Accountant about not carrying forward as transitional credit at the time of filing the refund claim. Hence, he submitted that their case is squarely covered by clause (d) of Section 11B ibid. 3.3 In addition to the above, learned Advocate submitted that the issue under dispute is settled in favour of the appellants, in a number of cases decided by the Tribunal and upheld by the Hon'ble High Court of Bombay. He relied upon the following case laws: (i) Lupin Limited Vs. Commissioner of GST & Central Tax, Aurangabad - (2025) 26 Centax 192 (Tri.-Bom.) (ii) GE Power Systems India Private Limited Vs. Commissioner of Service Tax, Ahmedabad - (2024) 25 Centax 355 (Tri.-Ahmd.)....
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....rs in both the cases of NSSL Private Limited (supra) and Lupin Limited (supra) have informed vide reply letter dated 10.09.2025 and reply e-mail dated 25.08.2025, that the Orders passed by the Tribunal in the above referred cases have been accepted by the department and have not been appealed against before the higher appellate forum. 9.1 We also find that the identical issue has been addressed in the Order of the Tribunal in the case of NSSL Private Limited (supra) and the appeal was allowed in favour of the appellant therein. The relevant paragraphs of the said order are extracted and given below: "3.....Insofar as the statutory provisions are concerned, it has been mandated that the assessed/adjudged amount of tax/interest/fine/ penalty shall be recovered from the assessee as an arrear of tax under the CGST Act, 2017. In the case in hand, the appellant is not falling under the scope and ambit of sub-section 8(a) of Section 142 (supra) inasmuch as no assessment/adjudication orders were passed by the competent authorities in determining the tax liability, which the appellant was required to pay under the erstwhile statute; rather, the case of the appellant is gov....
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....24, the Hon'ble Bombay High Court have held that Sub-section (3) of Section 142 of the CGST Act, 2017 very clearly says that any amount eventually accruing shall be paid in cash and directed the departmental authorities/sanctioning authority for refunding the amount of duty refundable to the petitioner in cash instead of credit in CENVAT account. The relevant paragraphs of the said judgement of the Hon'ble Bombay High Court are extracted and given below: "11. In our view, Section 142(3) of the Act is very clear in as much as, it says " every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law .............. and any amount eventually accruing ........ shall be paid in cash ......". It is very widely worded in as much as it uses the expression "CENVAT credit" and also "any other amount paid". Even if, we take it that petitioner has made voluntary deposit, that amount has to be shown as CENVAT credit in the account of petitioner. In the alternative, it would certainly come under the category "or any other amount paid". Therefore, either way th....