TMI Blog2008 (5) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... the category Telephone Services, Online Information and Database Access and Retrieval Services, Leased Circuit Service etc. They were registered as a Service tax assessee and were paying Service tax on the taxable value of services provided by them. The respondents filed the refund claim on 23-9-2005 on the ground that they had paid the service tax on Maximum Retail Price (MRP) of the Recharge Coupon Vouchers (RCVs) for their pre-paid services but the recharge vouchers had actually been sold to the distributors at a discounted price from the MRP and some recharge vouchers had also been distributed free of cost to distributors/operators. The claim was filed on the ground that the money value of the discount given on the recharge vouchers and that distributed free had not been received by the respondent and hence, service tax is not payable on these as per Explanation (2) of Section 67 of the Finance Act, 1994 and Rule 6 of Service Tax Rules, 1994. The said refund claim was rejected on the ground that the claim was partially time-barred under the provisions of Section 11B and also on the ground that the invoices submitted in support of the claim were of Reliance Communications Infras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , based upon the annual account, as submitted by the RCL and RCIL is totally different. It is his submission that non-issuance of invoices in accordance with Rule 4A by the RCL in itself is enough for the Revenue to hold that the respondent has not issued in voices. It is his submission that under the agreement dated 1-10-2004, RCL and RCIL were acting by letter and spirit, as principals and not as a principal and agent. He assails that part of the agreement to canvas that the arrangement between RCL and RCIL is only on sale between principal to principal. He submits that the unjust enrichment clause is also not satisfied inasmuch as that the financial records of both i.e. RCL and RCIL did not indicate that they have not been expensed out. It is his submission that whatever amount has been paid in excess was already recovered by passing on the incidence of duty to other persons. It was further submitted that the refund claim, which was returned by the Revenue can be taken on record only when all relevant documents are available. For this submission, he relies upon the Supplementary Instructions No. 2.4 of Chapter 9 of CBEC Supplementary Instructions Manual. He further submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted wrongly and excess Service tax paid, is not due to the Government, as the respondent has not realized the actual value of MRP. It is his submission that though all the invoices issued by the RCIL, the said invoices appear as bill of RCL. He draws our attention to specimen invoices and submits that Service tax relating to PCO pre-paid services has been paid to the Central Government. 5.1 As regards the unjust enrichment, it is his submission that there is no question of unjust enrichment as RCIL has raised invoices as an authorised person of service provider i.e. RCL. Hence, amount charged from the distributors being less than the denomination of the value of recharge coupon vouchers, they are eligible for refund of Service tax paid in excess. He submits that RCIL billed/invoiced distributors only for the discounted price hence, the question of passing on the burden of the Service tax either by the RCL to RCIL or by RCIL to the distributors does not arise. It is his further submission that this point was raised before the adjudicating authority and lower authorities did not dispute this. It is his submission that the lower authorities has not recorded that RCL had passed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the respondent has adduced enough evidences to indicate that the refund claim as has been sought by them is fundamentally correct, and finally whether the doctrine of unjust enrichment is satisfied by the respondent? 7. As regards the Issue No. 1, it is noticed that the respondent has filed refund claim to the authorities on 23-9-2005. The said refund claim was on the ground that the respondent had sold recharge coupon vouchers to the distributors for the pre-paid PCO and that the respondent had sold RCVs through M/s. RCIL. It is undisputed that the respondent is a service provider and engaged in the business of providing telephone services all over India. It is undisputed that the respondent had discharged the Service tax liability in this category for the various services provided by them. The refund claim submitted by the respondent on 23-9-2005 was returned back by the authorities on 21-12-2005 directing the respondent to submit evidences regarding the said refund claim. It is the contention of the learned Jt. CDR that once the claim has been returned on 21-12-2005, the subsequent resubmission of refund claim is to be considered as fresh refund claim. We do not agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the unceremonious return of the application. The course adopted by the Assistant Commissioner, of returning the claim application without making an order thereon amounts to refusal to perform the statutory duty imposed on him to consider the application and make an order thereof, in accordance with law. The impugned order returning the application of the petitioners for refund of claim is, therefore, illegal and void and is liable to be set aside only on the ground that it was the duty of the Assistant Commissioner to have considered the claim application and made an order thereon under the provisions of Section 11B of the Act, and the relevant rules. The impugned order dated 10-1-2003 is, therefore, hereby set aside with a direction that on presentation by the petitioners of the original application dated 20-12-2002 which was returned to them under the impugned order, that application shall be taken on record by the Assistant Commissioner and it shall be duly considered and an appropriate decision be taken thereon in accordance with law after giving adequate opportunity to the applicant to furnish proof, if any, in support of his claim. Rule is made absolute accordingly with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the subscribers - (a) all amounts including deposits under the Tariff Plan at the time of subscriber enrolment. (b) amount due from the subscriber from time to time against bills raised for the Services rendered by RIC. 6.1 RCIL acknowledges that all Proprietary Rights are the exclusive property of RIC and/or its affiliates(s) whether registered under the application law or not. Neither this Agreement nor any rights conferred herein shall in any way give or be deemed to give to RCIL any right, interest or ownership in any of the Proprietary Rights, Proprietary System, promotional advertising or other written material relating to the service, except for the right to use the same strictly in accordance with the terms and conditions of this Agreement. 7.4 In consideration for the compensation available for the marketing services of RCIL, as set forth in this Annexure A, RCIL agrees to distribute PCO and PPT cards without Additional Compensation and these cards shall be sold to RCIL at the rate at which they shall be sold to subscribers." (Emphasis supplied) The above said clauses in the marketing agreement are not disputed by the Revenue. The plain reading of the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as submitted by the respondent was totally erroneous and no evidence was placed on record by the respondent to show that the said refund claim is correct. As we have held earlier, we would not like to go into the nitty-gritty of the figures, which has been culled out by the learned Jt. CDR. Whether the amount of refund claim is quantified correctly or not, is a prerogative of the adjudicating authority. At the same time, regarding the letter, documents and evidences produced by the Jt. CDR, we find that it definitely requires consideration by the authorities. We have held in the above para that the exact amount of refund claim, which is to be paid to the respondent requires to be recalculated, for which we have already held that the matter to be remanded back to the lower authorities. 11. As regards the unjust enrichment, we find that the respondent had in fact, in their reply, submitted how the doctrine of unjust enrichment does not affect them. We find that the adjudicating authority, while adjudicating the matter at the first instance did not record any adverse findings though being raised in show cause notice. This would mean that the adjudicating authority has held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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