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TMI Blog2009 (11) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that they have paid excess Service tax on full gross amount billed by them to media without considering the discount of 12% offered by them to the clients. The refund claim was rejected and on appeal filed by Poornima, the Commissioner (Appeals) in the impugned order held that on merits Poornima is eligible for the refund claim but held that the observations of the Original Adjudicating Authority regarding unjust enrichment is required to be upheld. Accordingly, the refund claim stands rejected. Revenue has filed appeal against the decision of Commissioner (Appeals) upholding the refund claim on merits. 2. Heard both the sides. We find that the conclusion of the Commissioner (Appeals) that appellant is eligible for refund on m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be accepted. 3. The second contention is that the refund claim of Rs. 13,73,910/- which pertains to the Service tax paid prior to 25-1-2004 is hit by the limitation under Section 11B of Central Excise Act, 1944 made applicable to Service tax matters by Section 83 of Finance Act, 1994. The learned advocate fairly stated that he is not pressing this issue and accepts this contention. 4. The next point that is required to be considered is whether the re fund claim is to be rejected on the ground of unjust enrichment. We find that the reliance of the learned advocate on the decisions of this Tribunal in the case of Adwise Advertising Pot. Ltd. v. Union of India reported in 2006 (2) S.T.R. 375 (Mad.) = 2001 (131) E.L.T. 529 (Mad.), Shiva An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by them from advertising agency, from the newspaper or the media. The very same issue had come up before the Tribunal in the case of Mccann Erickson India Pvt. Ltd. re ported in 2008 (10) S.T.R. 365 (Tri.-Bang.) and also Euro RSCH Advertising Ltd. v. C.C.S.T., Ban galore reported in 2007 (7) S.T.R. 277 (Tri. -Bang.). In both the cases it was held that Service tax is payable only on the actual amount received by the service provider. 6. In view of the above discussions, appeal filed by the Revenue is rejected and appeal filed by Poornima is allowed. It is made clear that rejection of the appeal filed by the Revenue does not validate the refund claim which is time barred and which has been accepted by the learned advocate as time b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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