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2015 (11) TMI 164 - CESTAT MUMBAI

2015 (11) TMI 164 - CESTAT MUMBAI - TMI - Refund Claim - show-cause notice has been issued by the Reviewing Authority for reviewing the refund after one year - Refund claim was sanctioned by the adjudicating authority since the value realized on sale of Recharge Coupon Vouchers was less than the MRP - Bar of limitation - Held that:- A harmonious reading of sections 73 and 84 lead to the conclusion that once the order passed in terms of section 84 holds that the refund was erroneously sanctioned, .....

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are completed within the specified time limit of two years. It is obviously not the intention of the lawmakers to provide incongruity in the combined reading of these Sections. - Decision in assessee's own previous case followed [2015 (6) TMI 510 - CESTAT MUMBAI] - Decided in favour of assessee. - Appeal No. ST/270, 271, 272, 273, 274/11 And Appeal No. ST/177, 182/11 - Dated:- 2-9-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri R.K. Das, Dy. Commr (AR) .....

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against the assessee beyond the period of limitation as is prescribed under Section 73 (i) read with Section 84 of the Finance Act, 1994. 3. Heard both sides and perused the records. 4. The issue involved in this case is the assessee while providing telecom services during the period December 2005 to May 2006, sold recharge vouchers to distributors at a discount to the printed MRP indicated on the sale invoice cost on distributors. The assessee discharged the service tax on the pre-paid recharge .....

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ted at 2015-TIOL-1109-CESTAT-MUM and produces a copy of the said order. It is his submission that in that case, Revenue had come in appeal before this Bench and the Bench has held that prior to 19.08.2009, provisions of Section 84(1) read with Section 73(1) requires that show-cause notice for the recovery of refund erroneously sanctioned should be issued within one year from the relevant date. It is his submission that in the cases in hand, Review Order was passed in February 2009, May 2009 and .....

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pplied in the Revisional Authoritys power to issue show-cause notice and decide the same after reviewing the orders of the adjudicating authority. He would take us through the said provisions of Section and submit that the question of mixing the provisions of Section 73(i) of the Finance Act with Section 84 does not arise at all. 7. After considering the submissions made by both the sides, we find that the preliminary jurisdictional point raised by the learned Counsel would apply in this case. I .....

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nd within one year from the relevant date by issuing show cause cum demand notice. In the cases in hand, the show-cause notice issued by the Reviewing Authority is clearly beyond the period of one year. The Reviewing Authority as well as the Department Representatives reliance on the provisions of Section 84 to drive the point the provisions of Section 73(1) will not apply in the case of revision of the adjudicating authoritys order of sanctioning refund. We find that the said proposition of the .....

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that is the MRP. The difference between the MRP and the sale price is on account of commission of distributors and other incidental costs such as staff cost, bank interest, building hire charges, transportation cost, promotional charges on the brand, license fee paid to the government etc. and these are part of the assessable value of telephone services provided by the respondent to the customers/subscribers. ii) as the MRP includes the incidence of service tax payable on the RCVs, the burden o .....

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read with the substituted Section 84 effective from 19.08.2009. We find this argument faulty and to be rejected straightway. The period of dispute is Nov 2005 when the erstwhile Section 84 as reproduced in para 2 above, was in force. And we proceed to discuss the matter in the context of such Section as it stood before 19.08.2009. 6.3 The Commissioner, in the impugned order, did not consider it necessary to go into the merits of the case and refrained from examining the issue of unjust enrichme .....

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ons of the Service Tax Law are comprised in Chapter V of the Finance Act 1994. Therefore we see no fault in the reasoning of the counsel that the order passed by the Commissioner is subject to the time limitation prescribed under Section 73 of chapter V of the Finance Act 1994. And since there is no allegation regarding presence of elements of fraud, misrepresentation etc. involving extended time period, the show cause notice should have been issued under section 73 (1) within one year from the .....

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between clause (1) and clause (5). The latter clause merely says that the revision proceedings initiated by the Commissioner must be completed by passing an order within two years from the date on which the order sought to be revised has been passed. In this case the order sought to be revised was passed on 9.07.2008 and therefore order of Commissioner is required to be passed before 8.7.2010 which was done. However the requirement of clause (1) that the Order is subject to the provisions of Sec .....

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ioner C.EX. Chennai - 2000 (121) ELT 272 (Tri-LB). It was held in this decision that the show cause notice as contemplated under section 11A of the Central Excise Act is required to be issued for recovery of erroneously refunded amounts within the time limit as provided in that Section from the relevant date and not through proceedings under section 35E. Although these decisions were rendered in the context of the Central Excise Act, the ratio will apply in the context of Service Tax law because .....

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