TMI Blog2015 (10) TMI 2364X X X X Extracts X X X X X X X X Extracts X X X X ..... charged service tax on net cost of provided services after adjusting 15% of advance already paid to service provider - Refund claim not found to be time barred in respect of 21 invoices involving refund of ₹ 17,80,316/- - No evidence regarding actual date of payment of service tax has been provided regarding one invoice no. Nashik/Misc/2012-13/RAB-021. Refund claim of ₹ 65,624/- - 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 favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant filed appeals before the Commissioner (Appeals), who except amount of ₹ 65,624/- allowed the refund of ₹ 17,80,316/- and ₹ 8,72,339/-. Aggrieved 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, Ld. C.A. appearing for the respondent submits that condition 3(e) of Notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority has rejected, the refund claim of the appellant mainly on the ground that they have failed to submit documentary evidence to prove that payment made by them through RTGS on 26.07.2012 and 03.01.2012 included, the amount of service tax for which refund was claimed. Since no dispute has been raised by the adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 behalf of the service provider, retention amount, TDS of income-tax, Works Contract Tax etc. and after adjustment of all such amounts pertaining to the aforesaid heads the balance amount was released to the service provider which also included the service tax as charged in each invoice. Taking the example of invoice no. Nashik/misc/2012-13/RAB-018 dated 03.06.2012 again, it is found that total amount of ₹ 39,80,964/ - was charged which included service tax it and amounts of various other heads which are mentioned below. Total Invoice Amount, including se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 refund of ₹ 17,80,316/-. However, her above observation is found to be true in respect of one invoice no. Nashik/Misc/2012-13/RAB-021 dated 29.06.2012 for which no evidence regarding actual date of payment of service tax has been provided by the appellant. But it is obvious that payment of service tax against the said invoices was made before the above referred first RGTS payment on 12.07.2012 which was certainly more than one year before their filing of refund application. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was filed within one year from date of payment of service tax to the service provider is well within the one year period. Similarly in other appeal service tax was paid, on 1/2/2013 refund was claimed, within one year from that date. Considered the facts, identical findings, I find no infirmity in the both the impugned orders and the Ld. Commissioner (Appeals) be careful, application of mind and going into detail fact of the cases, came to conclusion that refund of the respondent, which is within one year from the date of service tax, is admissible to the service provider in view of my above discussion, I am of the considered view that one year period envisaged in the notification No. 40/12-ST in the present case was correctly reckoned fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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