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2015 (12) TMI 1109 - CESTAT MUMBAI

2015 (12) TMI 1109 - CESTAT MUMBAI - 2016 (41) S.T.R. 728 (Tri. - Mumbai) - Refund claim made by the recipient of services - service tax was paid wrongly by the service provider - Service Tax invoice issued by M/s. IDSPL is in the name of M/s. Fujitsu, New Delhi - Held that:- M/s. IDSPL has paid the service tax on ‘Business Transfer Fees' which was admitted that Service Tax on the said transaction is not payable. The Business Transfer Fees alongwith service tax was paid by the respondent to M/s. .....

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company of the respondent. The respondent having centralized registration at Pune, have correctly lodged their claim at Pune, particularly when the Service Tax by M/s. IDSPL was also paid in Pune only. - respondent's Pune office has right to claim at Pune only, therefore the claim is not without the Jurisdiction. It is also not the case of the Revenue that the same refund either claimed by the respondent's Delhi office or by another person. Since the service tax was erroneously paid the same ha .....

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his appeal of Revenue is directed against Order-in-Appeal No. PUN-EXCUS-001-APP-082-14-15 dtd. 30/09/2014 passed by the Commissioner (Appeals) Central Excise, Pune-I, wherein the Ld. Commissioner (Appeals) set aside the Order-in-Original No. PI/STC/R/41/2013 dated 24/7/2013 and allowed the appeal of the respondent. 2. The fact of the case is that respondent, M/s. Fujitsu Consulting India Pvt. Ltd. Pune is registered under Centralized Service Tax Registration and engaged in providing various taxa .....

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ervice Tax. Accordingly, respondent filed refund claim of erroneous payment of service tax of ₹ 97,89,120/- on 25/4/2013 under Section 11B of the Central Excise Act, 1944. A show cause notice dated 13/5/2013 was issued on the various discrepancies in the refund claim which was adjudicated by order in original dated 24/7/2013, wherein refund was rejected only on the ground that Business Transfer' invoice raised by IDSPL is in the name of M/s. Fujitsu, New Delhi, which was not included i .....

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arges including Service Tax was raised by M/. IDSPL as a service provider to M/s. Fujitsu, New Delhi, who is service receiver, therefore the present respondent has neither paid service tax nor received the services, the respondent is not entitle for refund. He further submits that invoice was raised in the name of M/s. Fujitsu, New Delhi. Whereas refund was claimed by respondent who is located at Pune, the respondent has no locus standi to claim the refund. It is his submission that the responde .....

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Service tax which was admittedly borne by respondent. Invoice was issued in the name of same entity at their Delhi office, however being one single entity, the books of accounts, trial balance etc. is common and it has been seen by the lower authority that service charges as well as service tax paid by the respondent has been accounted for in the books of Respondent. In this position even though the invoice was raised to the recipient at Delhi office merely for that reason refund cannot be deni .....

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efund claim can be made by either parties. In the present case, M/s. IDSPL has given disclaimer, accordingly not made any claim' therefore the only person entitle for refund claim is the respondent alone. Revenue treating Delhi office as separate entity is absolutely wrong and without any basis for the reason that M/s. Fijitsu, New Delhi is not different person but registered office of the respondent and it is integral part of one legal entity i.e. Company of the respondent. He submits that .....

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Heavy Chemicals Ltd. Vs. C.C.Ex, Rajkot [2005 (192) ELT 658 (Tri. Mum)] He also relied upon judgments in case of Devasthan Vighag Vs. C.C.Ex. Jaipur-I [2008 (10) STR 415 Tri. Delhi)], wherein it was held that just due to different jurisdiction refund cannot be rejected. 5. We have carefully considered the submissions made by both sides. 6. We find that from overall facts and circumstances of the case denial of refund was boiled down to only one issue that Service Tax invoice issued by M/s. IDSPL .....

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nce of the same was borne by the respondent. As regard the invoice raised by the M/s. IDSPL in favour of respondent at Delhi address, it does not make any difference for processing the refund claim for the reason that Delhi office of the Respondent is their registered office and the same is not different entity, it is integral part and parcel of the one company of the respondent. The respondent having centralized registration at Pune, have correctly lodged their claim at Pune, particularly when .....

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urisdiction. It is also not the case of the Revenue that the same refund either claimed by the respondent's Delhi office or by another person. Since the service tax was erroneously paid the same has to be refunded and M/s. IDSPL has given the disclaimer, only right to claim the refund is with respondent only. On going through judgments cited by the Ld. Counsel, we find that ratio of all the cited judgments are applicable in the present case. On going through impugned order, we find that Ld. .....

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ppellants have paid the entire amount to IDSPL including Service TAX, the entire amount is reflected as receivable from Govt.' in Appellants' trial balance duly certified by the Chartered Accountant, IDSPL has submitted a no objection certificate' to Appellants and the refund is not hit by unjust enrichment, Appellants have reversed the Cenvat Credit of the said Service Tax amount in their Cenvat account. I find that the Adjudicating Authority in para 33 of the Order-in-Original has .....

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sdiction of Pune-I Commissionerate. As such the only issue that needs to be sorted in this case is whether rejection of the refund claim on the grounds of jurisdiction is correct. 7. I find that the observation of the Adjudicating Authority vis-à-vis the Asstt. Commissioner (Audit) that neither the service provider not the service recipient in the instant case are located in the jurisdiction of Pune-I Commissionerate is based on the fact that the invoice raised by the IDSPL was bearing ad .....

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is observed that the documents such as trial balance and bank statement shows only the name of the company viz. M/s. Fujistu Consulting India Pvt. Ltd. and do not specify location of the company. Thus it is unclear whether these documents are of Pune of Delhi'. In view of these observations in the Order-in-Original, I find that the Adjudicating Authority is not sure of their claim that the services were received by the Appellants at Delhi office. Further, the Appellants have obtained central .....

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be retained by the Deptt. The only ground for rejection of the refund is that the address on the invoice No. 342/2012-13 dated 26-04-2012 issued by IDSPL was of Appellants' Delhi office and Delhi office is not included in their centralized registration. The appellants in their submissions have stated that their Delhi office does not provide any services from the said office hence the same has not been included in their centralized registration. Delhi office of the Appellants is registered o .....

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ng therein that in the instant case the services recipient is M/s. Fujistu New Delhi and service provider is IDSPL Bangalore. However, it is stated in Order-in-Original that the impugned amount is shown as receivable from Govt.' in Company's audited trial balance sheet (para 23 & 37 of the Order-in-Original). Since the payment of Service tax by the Appellants is not under dispute and since the said amount is shown as receivable in their books of account, it can be construed that the .....

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