TMI Blog2019 (6) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... sailable. Further in the Order-in-Original also, the adjudicating authority has not disputed the eligibility of the appellant. The Order-in-Original has denied the refund only on the ground that the appellant has not produced any evidence regarding the payment of service tax on the said commission during that period. The appellant is entitled to the benefit of the exemption Notification No.19/2015 dt. 14/10/2015 but for quantification / verification of proof of payment of service tax and also to examine the unjust enrichment, the matter is remanded back to the original authority - appeal allowed by way of remand. - ST/21702/2018-SM - Final Order No. 20458/2019 - Dated:- 4-6-2019 - MR. S.S GARG, JUDICIAL MEMBER Appearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testing the demand and the matter is pending before CESTAT, Bangalore. In the meantime, the CBEC vide Circular No.180/06/2014- ST dt. 14/10/2014 once again clarified the issue of levy of service tax on activities involved in relation to inward remittances from abroad to beneficiaries in India through MTSOs stating that the value of intermediary service provided by the agent to MTSO is the commission or fee or any similar amount, by whatever name called, received by it from MTSO and service tax is payable on such commission or fee. In view of this circular, the appellant started discharging the service tax on the commission received from MTSO from October 2014 onwards. Further in order to avoid litigation, appellant remitted the service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides and perused records. 4.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that in the show-cause noticed dt. 19/02/2016, there is no dispute regarding the eligibility of the appellant for the exemption under Notification No.19/2015-ST dt. 14/10/2015 and the adjudicating authority has not disputed the same in the Order-in-Original. The Commissioner(Appeals) in the impugned order has gone beyond the show-cause notice as well as beyond the adjudication order and decided that the appellant is not eligible to the benefit of the exemption notification. The learned counsel submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal. He further submitted that the services provided by both the agent and sub-agent to the MTSO are identical and constitute export of service as per the settled law and therefore the impugned order denying the benefit of the exemption is contrary to law. He further submitted that all the details of payment of service tax on the service to MTSO were submitted before the adjudicating authority as well as the Commissioner(Appeals) but they have not considered the same and rather the original authority has held that the appellant has not proved the payment of service tax on the commission received from MTSO for the period April 2014 to September 2014. The learned counsel also submitted that unjust enrichment is not applicable in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 257 (Tri. LB)] has been challenged before the Hon ble High court of P H and is pending there. He further submitted that the same Larger Bench decision is pending before the Hon ble Apex Court in the case of Commissioner Vs. Transcorp International Ltd. [2017(49) STR J138 (SC)] but there is no stay of the Larger Bench decision of the Tribunal. 6.1. After considering the submissions of both sides and perusal of the material on record, I find that the impugned order examining the eligibility of the appellant to the benefit of Notification No.19/2015 dt. 14/10/2015 is beyond the show-cause notice because in the show-cause notice, eligibility of the appellant to the benefit of the said Notification is not assailable. Further I fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. In the circumstances these appeals are required to be allowed and are accordingly allowed. There shall however be no order as to costs. 6.2. Further I find that as per the submission of the appellant that they have given sufficient proof of payment of service tax but both the authorities below have not considered the same. Further I find that the appellant has also given the Chartered Accountant certificate certifying that the appellants have only collected commission from MTSO and not collected service tax thereon but the factum of unjust enrichment has also not been considered by both the authorities. 7. In view of the above, I hold that the appellant is entitled to the benefit of the exemption Notification No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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