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2014 (4) TMI 767 - AT - Service TaxRefund claim for service tax paid wrongly - Foreign commission agent - appellant paid the service tax and took the cenvat credit of the same as a receiver of the service - realising that there was no need to pay service tax as a receiver, appellant filed a refund claim which was allowed - Before receiving the refund, appellant had reversed the cenvat credit taken by them - Held that:- The legal principle laid down cannot be said to be not applicable just because the service receiver and the provider happen to be one and the same. Further, I also find considerable force in the argument advanced by the ld. counsel that at the time when credit was taken it cannot be said that there was a wrongful availment. In any case, there is a question of interpretation of law involved and it would require consideration of statutory provisions and precedent judicial decisions to come to a final conclusion. However, prima-facie the ld. counsel has been able show that the time when tax was paid by the appellant as a receiver, it cannot be said that it was paid wrongly especially when it was paid on the advice of the department. Under these circumstances, it cannot be said that the credit was availed wrongly and therefore interest is liable to be paid when the credit is reversed. Since appellant has made a prima-facie case for waiver of pre-deposit, the pre-deposit is waived and stay against recovery of the dues is granted during the pendency of appeal - Stay granted.
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