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Service Tax - Case Laws
Showing 81 to 100 of 107 Records
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2016 (5) TMI 374
Demand of Service Tax - Port services, Cargo Handling, Steamer Agents, "Business Auxiliary Services" and renting of immovable property services - collected charges under various heads as reimbursement charges - Held that:- on perusal of sample documented invoice, it is found that respondent had issued invoices indicating herein that particular invoice is for reimbursement of an amount paid to Mormugao Port Trust towards Cargo related charges and annexing invoice which is in respondent's name issued by Mormugao Port Trust. Various documents indicate procedure followed by the respondent i.e. pay the amount to service provider and claim the same as reimbursement from their client. Hence, this activity of the respondent is covered as an activity of a pure agent. By following the decision of Hon'ble High Court of Delhi in the case of Intercontinental Consultants & Technocrats Pvt. Ltd. Vs. Union of India [2012 (12) TMI 150 - DELHI HIGH COURT], the provision of Rule 5(1) of Service Tax (Determination of Value) Rules, 2006 which would mean any amount of reimbursement of the expenses cannot be included for discharge of Service Tax liability. - Decided against the revenue
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2016 (5) TMI 310
Disallowance of Cenvat credit and recovery of interest - Authorized Service Station, Business Auxiliary Services and Servicing of Motor Vehicles on which the service tax is paid - engaged in trading activity of passenger cars purchased from the manufacturer supplier on which no service tax is paid - availing Cenvat Credit on various common input service - Revenue contended that appellant were availing Cenvat Credit in respect of common services which are used for taxable services as well as for trading activity.
Held that:- the very identical issue has been considered by this Tribunal in the case of Badrika Motors Pvt. Ltd. Vs. Commissioner of C.Ex. & S. T., Bhopal [2014 (1) TMI 316 - CESTAT NEW DELHI] and Commissioner of Central Excise, Thrupathi Vs. Shariff Motors [2009 (3) TMI 155 - CESTAT, Bangalore]. In the case of Badrika Motors Pvt. Ltd., the Cenvat credit was denied on the GTA service on the ground that the GTA service has no nexus with the taxable service such as Authorized Service Station and Business Auxiliary Service. This Tribunal has held that no arithmetical correlation is required between the input and output services and accordingly the credit was allowed. In the case of Shariff Motors similar facts was involved that the assessee had availed the Cenvat credit in respect of GTA service which is used for transportation of motor cycles from factory to show room which were sold as such and credit was utilized for payment of service tax under authorized service station. The Division Bench has allowed the credit on GTA service. This decision has been upheld by the Hon'ble Andhra Pradesh High Court. Therefore, in view of the above judgments, and since the identical facts are involved the appellant is not required to reverse the Cenvat Credit attributed to the trading activity of passenger cars.
Period of limitation - Penalty under Section 78 - Held that:- the Commissioner (Appeals) has conclusively held that in the absence of ingredients such as fraud, collusion, suppression of fact etc. with intent to evade payment of duty, the penalty is not imposable under Section 78. Considering this finding which equally applicable in case of invocation of extended period in terms of proviso to Section 73, the demand is not sustainable on the ground of time bar also. Therefore, the impugned order is not sustainable on merit as well as on limitation and the same is modified. - Decided in favour of appellant
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2016 (5) TMI 309
Disallowance of Cenvat credit on rental services - Two different premises - there was old name of the assessee company in the invoice and also for address of Patna, Bihar - different premises having two different registration numbers and thus two different assessee - Held that:- matter is remanded back to the adjudicating authority with a direction to verify the details and the fact of deposit of service tax by the service provider. The appellant is also directed to produce the clarification certificate from the service provider, clarifying clerical error in the invoices meant for rental premises mentioning their registration number etc and certifying that they have deposited the service tax. It is further held that the substantial benefit of Cenvat credit can not be denied for clerical error, which is evident on the face of record. - Decided in favour of appellant by way of remand
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2016 (5) TMI 308
Condonation of delay - delay of 48 days in filing the appeal - Appellant contended that delay was occured due to misplacement of the copy of O-I-O - Commissioner (Appeals) rejected the appeal observing that he has no power to condone the delay beyond the period of 30 days - Held that:- it does not appear to be a deliberate lapse on the part of the appellants. It is further found that the delay has been adequately explained. Therefore, there is a good case on merit in favour of the appellant. Accordingly, the delay is condoned and the COD application is allowed for extending consionable justice to the appellant.
Disallowance of abatement claim and imposition of service tax - Held that:- it is relevant to notice the findings of the ld.Commissioner as given in Order-in-Original, under similar facts and circumstances, dropped the proposed demand, for the material components and allowed the abatement. Accordingly, agreeing with the findings of the ld.Commissioner (Appeals), the impugned order is set aside.
Imposition of penalty - Rule 7(C) of Service Tax Rules, 1994 read with Section 70 of the Act - Held that:- the penalty is reduced to ₹ 10,000/-. Penalties imposed under Sections 76 & 78 of the Act, are set aside.
Also the appellant is required to deposit the amount of ₹ 20,000/- to the Prime Minister’s Relief Fund within a period four weeks from the date of receipt a copy of this Order and file compliance report. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 307
Liability of Service tax - Reverse Charge Mechanism - Business Auxiliary Services - Section 65(19) of the Finance Act, 1994 - Appellant engaged in the business of promoting, marketing, canvassing, procuring orders from various customers in India for the medical equipments manufactured by M/s Viasys International Corporation and also carrying after sales service - Amount received as commission in convertible foreign exchange.
Held that:- the issue is no more res integra as the service is rendered by the appellant on the goods which was manufactured by overseas manufacturer. It would mean the services rendered by the appellant is to an overseas manufacturer on whom Service Tax liability does not arise. The service rendered to such a person situated based at overseas Service Tax liability arises on him but under reverse charge mechanism appellant is made liable to pay, however in this services are consumed by a person not in India, no Service Tax liabilities arises on appellant is the law settled which is supported by judgement of Hon'ble Bombay High Court in the case of CST Vs. SGS India Pvt. Ltd. [2014 (5) TMI 105 - BOMBAY HIGH COURT]. Therefore, the impugned order is unsustainable and liable to be set aside. - Decided in favour of appellant
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2016 (5) TMI 231
Extended Period of limitation - Demand of Service tax alongwith interest - Business Auxiliary Service - No concrete and sufficient evidence against the appellant - Held that:- If according to the appellant service tax liability was not attracted then also they should have deposited the amount with the department as an amount recovered in the guise of duty. Alternatively, appellant was expected to get in touch with the department for seeking any clarification /course of action. In the light of these facts extended period of limitation was correctly applied when confirming the demand and interest against the appellant. Appeal of the appellant to that extent is rejected.
Waiver of penalty under Section 80 - Appellant argued that even if extended period is held to be applicable then also penalties imposed upon the appellant are required to be waived as per the provisions of Section 80 of the Finance Act, 1994 - Held that:- it is the case of the appellant under Section 80 that they were under the impression the services provided to Govt. departments do not attract service tax because the nature of works specified in definition of Commercial or Industrial Construction, under Section 65(25 b) of the Finance Act, 1994 are normally carried out by Govt./Govt. departments. It is observed that works relating to Roads, Airports, Railway, Bridges, Tunnels and Dams under Commercial or Industrial constructions specified under Section 65(25 b) are normally carried out by Govt./Govt. departments. Appellant thus had a reasonable cause for not discharging Service Tax liability. Appellant has thus a case for waiver of penalties imposed under Section 77(2) and Section 78 of the Finance Act, 1994. - Decided partly in favour of appellant
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2016 (5) TMI 230
Levy of equal penalty u/s 78 of the Finance Act, 1994 - Invokation of Section 80 ibid - Reversal of excess Cenvat credit availed along with interest under protest before issuance of SCN - Held that:- there is no suppression of facts with an intention to evade payment of duty, as the respondent has paid the service tax and interest by showing their Bonafides. Therefore, a reasonable cause is present to invoke Section 80 ibid and the penalty is waived of. - Decided against the revenue
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2016 (5) TMI 229
Evasion of service tax - cognizable offence and is hit by Section 89(1) - Violation of conditions of Bail - t bail granted to the appellant was on the basis of his undertaking that he shall make the entire balance amount within fifteen days from the date of release on bail. After bail was granted, he had filed writ petition on 23rd November, 2015 challenging the remand application. - Earlier the VCES application was rejected due to non payment of installment of 50% of the amount.
Held that:- Evidently, the applicant had gone back from his undertaking on the basis of which the Court had passed the order for release on bail and therefore, he lacked bona fide. - it was absolutely wrong on the part of the appellant to go back from the undertaking after securing release on bail and thereafter to challenge the remand application by filing the writ petition.
Though the appellant in page 50 of the writ petition had admitted that a sum of ₹ 1,81,80,941/- is due and payable, however in paragraph 4 of the writ petition it has been stated that if adjudicated the amount would be less than ₹ 50 lakhs. So the stand of the appellant is inconsistent. Moreover, the orders of rejection have gone unchallenged. Therefore, the learned Judge was justified in dismissing the writ petition. The respondents are entitled to cost, which is assessed at ₹ 10,200/-. - Decided against the appellant
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2016 (5) TMI 228
Validity of Tribunal's clarification - Tribunal does not indicate as to whether the assessee addressed on merits of the demand of Service Tax - Imposition of penalty - Sections 76 and 77 of the Finance Act, 1994 - Held that:- we are not satisfied with the approach of the Tribunal. In revenue matters, the approach as taken would not only entail in loss of revenue but precious judicial time and of the Higher Court. The Tribunal ought to avoid it in all circumstances. Therefore, the order passed on 26th March, 2015 is quashed and set aside. - Matter restored before the tribunal.
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2016 (5) TMI 197
Violation of principles of natural justice - Adjournment sought by the Petitioner on reasonable and valid grounds not granted - Deprived of an effective opportunity of participating in the adjudication proceedings and presenting its version - Evasion of Service tax - Demand of service tax, interest and penalty as proposed in the SCN confirmed.Adjudication pending for more than six years.
Held that:- with only one effective hearing having taken place, it would have not caused any serious prejudice to the Department if the request for adjournment made by the Petitioner, on account of the indisposition of its CA, supported by medical certificate, had been accommodated. After all, the SCN was pending adjudication for more than six years. It appears to the Court that the only reason why the Principal Commissioner, Central Excise as AA was in a hurry to conclude the proceedings was that he was retiring on the very date he passed the impugned order. He was perhaps anxious that the SCN should not be shown as pending for over six years. It is these extraordinary circumstances, that persuades the Court to exercise its powers under Article 226 of the Constitution.Therefore, the adjudication order is sets aside. Also it is directed that the adjudication proceedings arising out of the SCN issued against the petitioner will now resume before an AA, as may be designated by the Central Board of Excise and Customs (CBEC), from the stage it was prior to the passing of the impugned adjudication order. - Petition disposed of
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2016 (5) TMI 195
Classification of seafood inspection services - Whether it would fall under Technical Inspection and Certification Services or Technical Testing & Analysis Services of the goods for the period 2007-08 - Held that:- from the agreement it is found that the activity of the appellant is not only inspection of the facility and certification of the factory, but also include the result analysis of the seafood which were sampled by the appellant and send for testing. The report submitted by the appellant on the Audit conducted by them also shows that the testing on the various seafoods. In our view, if the inspection of the seafood and analysis thereof as to adherence to the quality as prescribed by M/s JMRI, would fall under the category of “Technical Testing & Analysis Services”, eligible for exemption granted for “Technical Testing & Analysis Services” on “human beings or animals” as there cannot be any doubt that seafood are nothing but a kind of animals. The first appellate authority as well as adjudicating authority miss-construed the purpose of agreement, the said agreement entered by the appellant requires as per complete inspection of the facility including quality of the seafood. Therefore, the impugned order is to the extent it holds that the services rendered by the appellant would fall under the category of “Technical Inspection and Certification Services” is incorrect and liable to be set aside.
Refund claim - Confirmation of demand raised on the erroneously sanctioned refund - Held that:- the confirmation of the demand raised of erroneous sanctioned ₹ 1,53,875/- which is in contest in this appeal needs to be set aside and we do so. Further, the contention of the appellant that they are eligible to refund claim of ₹ 1,77,956/- is rejected as it is very clear that the refund claim is beyond the limitation period as provided under Section 11B of Central Excise Act, 1994. It is found that in the case in hand looking at the issue from another angle, the Service Tax liability on the appellant is refundable to him as the goods which are inspection services as provided by the appellant is to a person situated abroad. This ratio is settled by the Hon'ble High Court of Bombay in the case of Commissioner of Service Tax, Mumbai-III Versus M/s. SGS India Pvt. Ltd. [2014 (5) TMI 105 - BOMBAY HIGH COURT]. The appellant is entitled to refund of the amount which is falls within limitation period. - Refund allowed.
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2016 (5) TMI 194
Admissibility of refund claim - Notification No.41/2007-ST - CHA services - Period involved is January, 2008 to March, 2008 - Revenue pointed out that during the relevant period CHA service was not specified under Notification - Held that:- during the relevant period, CHA service was not specified under the said Notification and therefore, the refund in respect thereof is clearly inadmissible.
Admissibility of refund claim - Notification No.41/2007-ST - terminal handling charges, documentation charges and on goods transport by road service - Held that:- there is force in the contention of the appellant that the judgment of CESTAT in the case of SRF Ltd. Vs. Commissioner of Central Excise, Jaipur-I [2015 (9) TMI 1281 - CESTAT NEW DELHI], Commissioner of Central Excise vs. AIA Engineering Pvt. Ltd. [2015 (1) TMI 1044 - GUJARAT HIGH COURT] and M/s. Ramdev Food Products Pvt. Ltd. Vs. CCE, Ahmedabad [2011 (3) TMI 1256 - CESTAT, AHMEDABAD] would cover the issue in the appellant's favour with regard to the remaining services. The exports were made claiming drawback under All Industry rates. While fixing these rates, Govt. takes into account the inputs and input services used in relation to export goods. As the place of removal in respect of export goods is port of shipment, the services mentioned above would qualify to be input services. Consequently the impugned refund is hit by the said proviso.
The said proviso was deleted vide Notification No.33/08-ST dated 07.12.2008. Thus, during the relevant period this proviso was very much applicable. We are unable to agree with the contention of ld. Advocate that Notification No.33/2008-ST dated 07.12.2008 in terms of which inter alia the said proviso (e) was deleted should be given retrospective effect, for the simple reason that it is trite that in the absence of any express or implied provision for retrospective applicability, an amending notification only has prospective effect. - Decided against the appellant
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2016 (5) TMI 193
Inclusion of PF contribution and bonus for man power supplied to the client in the taxable value for discharging service tax - Man power supply service - Held that:- by referring to the decision of Tribunal in the case of M/s Neelav Jaiswal & Brothers Vs. Commr. of Central Excise, Allahabad [2013 (8) TMI 147 - CESTAT NEW DELHI] and also taking the note of the decision of Hon’ble Delhi High Court in the case of Intercontinenntal Consultants and Technocrats Pvt. Ltd. [2012 (12) TMI-150 (Delhi-HC)] which was again referred by the Hon'ble High Court in the case of H. M. Singh & Co. Vs. Commr. of Customs, Central Excise & Service Tax [2014 (9) TMI 218 - ALLAHABAD HIGH COURT], the bonus amount paid as incentive to the personnel deployed by the appellant is also rightly includable in the total consideration for service tax purposes. These are additional remunerations though not as per prefixed periodicity and quantum. - Decided against the appellant
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2016 (5) TMI 192
Seeking grant of ad-interim ex parte relief - Levy of Service Tax - Sale of tickets for the Indian Premium League (IPL) Cricket Tournament - Petitioner contended that it is in any event paying tax on entertainment, within the exclusive domain of the State as per List II of the 7th Schedule to the Constitution so, in respect of the same taxable event viz., there cannot be a levy of service tax by the Union on the sale of tickets and a levy of entertainment tax by the State. Also in terms of the Agreement entered into between the petitioner and the BCCI there is an obligation on the petitioner to provide BCCI 20% free tickets in every category so it should not be made liable to pay Service Tax on such ‘free tickets’.
Held that:- as far as the second submission is concerned, it will require examination of the Agreement between the petitioner and the BCCI in some detail. It is found that for the current IPL season, the petitioner has already collected the Service Tax on the tickets sold. Having collected the Service Tax in terms of the amendments in the Finance Act, 1994, there is an obligation on the petitioner to deposit such Service Tax with the Central Government. Therefore, the only interim order that can be passed at this stage, while reserving the rights and contentions of both the parties at the final hearing of the writ petition, is to direct that the Service Tax as collected and deposited by the petitioner during the pendency of the present writ petition will be subject to the final outcome of the petition. - application is disposed of.
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2016 (5) TMI 190
Waiver of penalty u/s 80 - service tax - Whether Section 80 of the Finance Act, 1994 envisages only a complete waiver of penalty once reasonable cause of failure is established by the assessee or whether the provision can also be applied to a level below the minimum penalties specified under Section 76 and 78 of the Finance Act, 1994.
Held that:- by following the judgment of this court in the case of Union of India and Others v. Dharamendra Textile Processors and Others [2008 (9) TMI 52 - SUPREME COURT], the appeal is allowed and the impugned order of the High Court [2007 (8) TMI 197 - HIGH COURT, BOMBAY] is set aside. - Decided in favour of revenue
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2016 (5) TMI 180
Refund claim - Rejected on ground of (a) invoices on which credit has been availed and refund claim pertaining to unregistered premises, (b) inputs invoice on which refund claimed does not pertain to the claim period and (c) ineligible input services - export of services - Cenvat credit in respect of unutilized input credit was accumulated in the record of the assessee and when refund thereof was claimed, the said was disallowed by the adjudicating authority.
Held that:- there is no dispute that export of goods and services are not taxable and registration is not a criteria to allow refund when the output service is not liable to duty or tax. By following the decision of Hon'ble Karnataka High Court in the case of mPortal India Wireless Solutions P. Ltd. Vs CST Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT], limitation under Section 11B does not apply to refund of accumulated cenvat credit and therefore bar of limitation cannot be a ground to reject refund of cenvat credit to the assessee. Therefore, the appeal is allowed in so far as the aspect of additional premises is concerned.
The submissions of both the sides, are at factual variance in as much as the appellant had contended that they had shifted their business premises to a new address and the respondent revenue contends that they had registered with the department only on 25-05-2010. The above stated judgment is wide enough to cover both the situations and therefore, whatever is the factual situation, that would not in any way alter the eligibility for refund. The pre-registration issue settled in favour of the appellant. Regarding the third issue of ineligible input services, it is found that the services have been received in respect of Customs Clearing Services received for the goods imported relating to their business and therefore qualify as an eligible input service for the purpose of availment of credit as the said services are for inward transportation of inputs. Therefore, the impugned order is set aside. - Decide in favour of appellant
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2016 (5) TMI 136
Refund claim - Amount of service tax paid in excess than the amount actually payable by them under Management & Repair Services - Held that:- if it is established that the gross receipt of service charges is lesser than the gross service charges on which service tax was paid then the excess paid service tax is prima facie refundable to the appellant. If the lower authority has any doubt about the accounting, calculation, the right course of action is that he should call the appellant in person and give them the opportunity to explain the doubts as regard the accounting and calculation etc. Therefore, the matter is remanded back to the original adjudicating authority with a direction to verify the claim properly with the books of account and details submitted by the appellant. If there is any doubt or query the appellant should be called and given an opportunity to explain the books of account, the accounting of the receipt of service charges, payment of service tax and the excess paid service tax etc. on verification, if the adjudicating authority finds that there is an excess payment of service tax, the same should be refunded in accordance with law. - Decided in favour of appellant by way of remand
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2016 (5) TMI 135
Disallowance of Cenvat credit - Insurance Auxiliary Service - Availed Cenvat Credit in respect of certain service which is exclusively used for non taxable activity that is auction sale abandoned cargo and export of stuff cargo - Appellant contended that auction of abandoned goods being a trading activity is not a exempted service as the trading activity was covered under the definition of exempted service only w.e.f. 01.04.2011.
Held that:- even prior to 1.4.2011 since no service tax was payable on auction sale of abandoned cargo and export cargo, credit was not admissible on the input service used in such output activity as per the definition of input service. Therefore the Cenvat Credit on the input service used for auction sale of abandoned cargo and export cargo is not admissible to the appellant.
Period of limitation - Demand of Service tax - Auction of sale of abandoned cargo - Held that:- the demand proceeding on the auction of sale of abandoned cargo itself was alarm to the appellant that whether the Cenvat Credit should be availed on the input service used in the auction sale of abandoned cargo. Therefore despite knowing all the facts, the appellant kept on availing Cenvat Credit. As regard details of availment of Cenvat Credit on the nature of input service is not known to the department therefore it cannot be accepted from the department to issue show cause notice within 1year unless until the facts are unearthed. Therefore, as there is a suppression of fact on the part of the appellant, extended period in the first show cause notice was rightly invoked.
Imposition of penalty under Section 78 - Held that:- Section 78 penalty can be imposed only when there is a suppression of fact, fraud, collusion, willful misstatement etc. In the present case, the suppression of fact involved only in the first show cause notice. However, all the subsequent show cause notices were issued after knowing the facts involved in the first show cause notice, therefore in the subsequent show cause notices it cannot be said that there is suppression of fact on the part of the appellant, nor it can be said that the department had no knowledge about the fact of the case after issuance of first show cause notice. Therefore penalty under Section 78 is not sustainable corresponding to demand of Cenvat Credit for the period after September 2005 but sustainable for the period October 2003 to September 2005. - Decided partly in favour of appellant
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2016 (5) TMI 134
Taxability - Amount received under the category of “Management Consultancy and Manpower Recruitment Supply Agency Service” - Appellant wrongly claimed expenses as reimbursable and did not include the same in the taxable value for payment of service tax - Held that:- the appellant has been showing the amounts which has been claimed as reimbursable are not an amount towards the services but are in respect of various fees paid to DGFT authorities towards the application fees, licence fees, etc. Also the demand drafts raised in the name of DGFT authorities and receipts are issued by DGFT authorities in respect of the appellant's client who were undertaking the liasioning work with the authorities. Therefore, the service tax liability, as confirmed, is incorrect as the said amounts on which tax liability has been raised is nothing but reimbursement of the expenses incurred by the appellant for the licence fees, etc.
Disallowance of Cenvat credit - Held that:- the said amount is in respect of service tax paid on broad band services, courier services, internet and automobile service stations. These services are utilised by the appellant for rendering the output services i.e. "Management Consultancy Services". Therefore, the appellant was and is eligible to avail Cenvat credit of this amount. Accordingly the impugned order is set aside.
The issue, TDS credited to the debtors ledger for which no income tax refund has been received, needs reconsideration by the adjudicating authority as service tax payable on TDS which has been credited is more or less seems to be an accounting entry which needs to be appreciated in its proper perspective. As regards advance received prior to provisions of tax payable on advances/change in definition of services to be provided is included, it is the tax liability and advance payments received which according to the appellant, is not taxable because of various reasons, which has not been addressed by the lower authorities. Therefore, the impugned order is set aside and matter remanded back.
As regards Service tax on advance/payment received of exempted services towards services provided to SEZ, Service tax on reimbursement of expenses received in the capacity of Pure agent and Service tax on receipt of amount towards reimbursement of statutory expenses, it is found that these amounts are considered by the lower authorities as taxable, but are nothing but reimbursable amounts of various expenses paid by the appellant as a pure agent. There is no dispute that these three payments on which tax liability has been raised is in respect of the payment received for exempted services provided to SEZ and reimbursable expenses of the licence fees, etc. paid by the appellant. So, the appellant has made out a case in their favour in respect of these three tax demands. Accordingly, the impugned order is set aside to that extent.
As regards Service tax on reimbursement of expenses in the capacity of pure agent, it is the claim of the appellant that these tax liabilities is also on the reimbursable expenses in the capacity of pure agent but it is found that it is not so. It is noted that the appellant has been charging more than the expenditure incurred by him as a pure agent while billing the clients. So, the claim of the appellant that of a pure agent in these demands seems to be without any evidence as there is no dispute that the appellant had charged additional amount other than the amount paid as reimbursable expenses. Therefore, the service tax liability is upheld along with interest and is liable for penalty as per Section 76 of the Finance Act, 1994. - appeal disposed of
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2016 (5) TMI 133
Demand of Service tax - Overseas service under reverse charge mechanism - Deposit of amount of service tax as per the objection raised by the audit officer - Appellant submitted that it is a settled position that refund if any arises against the pre-deposit made during the proceedings shall be refundable as outcome of the adjudication of such demand. The relevant date for the purpose of refund under Section 11B is the date of the adjudication order on the demand case and not from the date of deposit of service tax. Also the amount deposited during investigation is treated as pre-deposit and the same become refundable as and when the case of demand of service tax is finalized.
Held that:- the demand raised in the show cause notice was dropped by the adjudicating authority and the service tax paid by the appellant is treated as pre-deposit. In case, if any amount deposited during the proceedings of the demand case, refund shall arise only when the demand case is finally decided in favour of the assesse. Though the appellant filed refund claim prior to the dropping of demand but the refund arise from the date of adjudication order by which the demand was dropped. Therefore in any case the date of deposit of service tax cannot be taken as relevant date in terms of Section 11B of the Act. The judgments relied upon by the appellant are applicable as in those judgment it has been held that the refund of any amount deposited during the investigation and proceedings the limitation of 1 year from the date of deposit shall not apply. Therefore, the refund is not hit by limitation. - Appeal allowed by way of remand
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