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Commissioner of Central Excise & Customs, Nashik Versus Indiabulls Realtech Ltd.

2015 (10) TMI 2364 - CESTAT MUMBAI

Refund of service Tax – Claimed under Service received by SEZ developer in terms of Notification No. 40/12-ST – Refund rejected on ground that filed beyond one year from date of payment of 15% advance and as such condition of clause 3(e) of Notification violated – Appellant contends that initially 15% advance payment was made by Respondent to service provider but on final billing stage 15% advance was reduced from total amount and on the balance amount service tax was charged - Refund claim file .....

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Date of invoice should not be taken as relevant date thus not found maintainable as there is no such provision in Notification.

One year period envisaged in notification correctly reckoned from date of payment of service tax to service provider and not from the date of advance payment - Impugned orders are sustainable – Decided partially in favour appellant. - APPEAL NOS. ST/85702 AND 86122/14 - Final Order Nos. A/2190-2191/2015-WZB/SMB - Dated:- 16-7-2015 - RAMESH NAIR, J. For The A .....

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t M/s. Indiabulls Realtech Limited is co-developer of SEZ and received various services on which service tax was paid by the service provider. Respondent filed refund claim for ₹ 18,45,940/- and ₹ 8,72,339/- in respect of Service received by the SEZ developer in terms of Notification No. 40/12-ST dated 26/3/2012. The original authority rejected both refund claims on the ground that refund claim was filed beyond one year from the date of payment of 15% advance to the service provider .....

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rieved by the said impugned orders the Revenue filed these appeals. 3. Shri. A.B. Kulgod, Ld. Asstt. Commissioner (A.R.) appearing for the Revenue submits that refund claims were filed beyond the one year from the date of payment of 15% advance and accordingly the respondent, has violated the condition 3(c) of Notification No. 40/12-ST therefore the refund was rightly rejected by the original authority and wrongly allowed by the Ld. Commissioner (Appeals). 4. On the other hand, Shri Vinay Jain, .....

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his submission that refund claim was filed within one year from the date of payment against such, bills. Condition 3(e) of Notification No. 40/12-ST also provides that refund should be filed within one year from date of payment of service tax to the service provider. As regard the 15% of the advance payment, since service tax itself was not paid on that amount, question of taking date of said 15% does not arise. The fact remained that the refund was filed within one year from the actual date of .....

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issioner (Appeals) after examining the actual facts given elaborate findings in the impugned order which is reproduced below: "6. I have carefully examined the records of the case and all submissions of the appellant, both written and oral. The O-I-O dtd. 20.08.2013 is stated to have been received by the appellant on 21.08.2013 and appeal against the same is filed in this office on 17.10.2013. Thus, the appeal is filed in time as prescribed under Section 35 of CEA, 1944. 7. The adjudicating .....

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ther the appellant had paid the service tax to the service provider on 26.07.2012 and 03.01.2012. 7.2 On examination of 22 concerned invoices; it is observed, that the service provider M/s. IIC Ltd. has charged service tax on the net cost of provided services after adjusting 15% of the advance already paid to the service provider. For example, in invoice no. Nashik/misc/2012-13/RAB-018 dated. 03.06.2012 total cost of Acquisition of service is ₹ 12,24,753/- against which an advance of Rs. l .....

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eflected, in the invoice and, therefore, no refund of service tax paid on advance is claimed by the appellant. 7.3 In order to prove payment of the amounts by the appellant as mentioned in the invoices, the appellant has submitted detailed chart and pertinent documents. On examination of the details given in the chart and invoices, it is observed that the payments were adjusted against different heads such as advances made to the service provider royalty payments and third party payments made on .....

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heads which are mentioned below. Total Invoice Amount, including service tax, ₹ 39,80,964/ Adjustments of following payments - 1. Advance paid. - ₹ 5,59,076/- 2. Retention amt. - ₹ 1,86,359/- 3. TDS - ₹ 68,438/- 4. WCT - ₹ 74,543/- 5. Royalty - ₹ 2 3,47,112/- SUB - TOTAL - ₹ 32,35,528/- Paid through RTGS on 12.07.2012 - (includes S. Tax of ₹ 1,28,672/-) - ₹ 7,45,436/- TOTAL- . - ₹ 39,80,964/- 7.4 Barring one invoice, the payment has bee .....

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which the fact of payment of service tax involved in these invoices is well established. 7.5 As the appellant had filed the refund claim within one near of the above referred two dates of payment on 12.07.2012 and 03.01.2013, filing of refund claim was entirely in time as envisaged in Notification. No. 40/2012-ST dated 20.06.2012 and, therefor, Deputy Commissioner's finding that refund claim is time barred is not found to have any factual or legal basis in respect of 21 invoices involving r .....

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refund claim of ₹ 65,624/- in respect of this one contention of the appellant that in this case, where payment was made in advance, the date of invoice should be taken as relevant date is not found maintainable as there is no such provision in the Notification No. 40/2012-ST dated 20.06.2012. 8. In view of the above, the appeal of M/s Indiabulls Realtech Ltd., Sinnar, Nashik, is allowed to the extent of their refund claim of ₹ 17,80,316/- and the O-I-O passed by the Deputy Commissio .....

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