TMI Blog2008 (11) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... is more than the amount of service tax shown in the debit notes - matter remanded for denovo adjudication of the refund claim & to ascertain as to whether the service tax was paid was cum tax amount and if this is so, the value is to be determined as per s. 67(2) - ST/628/08-SM - 1511/2008-SM(BR)(PB) - Dated:- 3-11-2008 - Mr. Rakesh Kumar, Member (Technical) Shri M.K. Sharma, Adv. for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Shri M.K. Sharma, Advocate, Ld. Counsel on behalf of the Appellant pleaded that in the debit notes, which are nothing but invoices raised by the Appellant to their franchisee, the franchise fee and service tax at the rate of 12.24% is separately mentioned, but when the payment was received against the debit notes, the Appellant by mistake paid service tax on the gross amount collected, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the employee and as such neither the basis for rejecting the refund was communicated to them nor proper personal hearing has been given to them. He also cited the decision of Hon'ble High Court of Allahabad in the case of Straw Board Manufacturing Co. Ltd. vs UOI reported in 1994(09)LCX.0065 in support of his plea that refund claim cannot be rejected without issue of a notice mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of service tax calculated on the actual royalty amount payable by their party and that the amount of service tax has also been debited from the ledger of the party on the basis of the amount of service tax payable and charged through debit notes'. From this finding of the Dy. Commissioner, it appears that the service tax has been calculated and paid on the gross amount received without deducting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther this aspect has been examined. The impugned order, therefore, is set aside and the matter is remanded to the Dy. Commissioner for denovo adjudication of the refund claim. The Dy. Commissioner is to ascertain as to whether the service tax was paid was cum tax amount and if this is so, the value is to be determined as per the provisions of Section 67(2). The appeal is disposed of as above. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
