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TMI Blog2018 (8) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be counted from the date of issue of credit note by the service provider and not from the date of payment of service tax.? ii) Whether the ld. CESTAT was right in law in holding that letter of service provider to its jurisdictional officer was sufficient proof of payment of service tax?" Counsel for the appellant contended that the Tribunal has seriously committed an error in referring the matter to the Service Tax Authorities, Kota jurisdiction ought to have been exercised by him since the original order has been passed by Indore Bench therefore, it will be difficult for Central Government to approach at Kota. He has relied upon the following decisions which was confirmed by the Supreme Court:- Oswal Chemicals & Fertilizers Ltd. vs. Commissioner of C.Ex., Bolpur; 2015 (318) E.L.T. 617 (SC) "9. The second reason given by the CESTAT, as mentioned above, is that the Appellant had preferred this application before a wrong authority. Here we find that the Appellant had filed the refund claim before the Central Excise Authorities at Durgapur. The Appellant had purchased the material from IOCL which is having its refinery at Durgapur. The show cause notice was also issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner was barred by limitation prescribed under Section 11B of the Act. We find no infirmity in the impugned orders. The petition is therefore, dismissed." Inox Leisure Limited vs. Commissioner of Income Tax, Mumbai: 2016 (42) S.T.R. 497 (Tri. Mumbai) 7. From the record, it is apparent that the appellant were providing services to CCIPL and received one time 'Signing fees' and 'Pouring fees' on annual basis from each of the properties i.e. Pune, Vadodara, Bangalore, Mumbai and Kolkata. The show cause notice admits this. Only because the 'Pouring fee' from all properties/locations was included in the Balance Sheet of the appellant in a consolidated manner under the income Head i.e. food and beverages, the DGCEI issued the demand show cause notice answerable to Commissioner of Service Tax, Mumbai demanding service tax on the fees collected from each location. It is not disputed that each of the locations had separate Service Tax registration. It is also not disputed that the services were provided by the appellant from a Multiplex in each location individually. Therefore there is merit in the contention of the Ld. advocate that the Commissioner of Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services rendered outside Mumbai jurisdiction. The Commissioner should have refrained from adjudicating and instead could have initiated the process of making show cause notice answerable to the jurisdictional Commissioners or he should have written to the Central Board of Excise and Customs seeking power to adjudicate the case of services rendered pan India just as DGCEI has the power to issue the show cause notice on pan India basis." 8. The Commissioner's reliance on the case of Nokia (India) Pvt. Ltd. (supra) is misplaced. In the case of Nokia, the facts were different. There it was held that, on being show caused, a person could not insist that they be issued show cause notice from all the various places from where it rendered its services. The facts were that services were being provided from Delhi office, the agreement provided that all notices, demands and other communication be addressed to the Delhi address. Help desk services were provided from Delhi as well as Hardware repair services. In these circumstances it was held that the Delhi Commissionerate had jurisdiction to issue the show cause notice. In the present case the issue is of extra territorial adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts had been cleared for home consumption, will have the jurisdiction to issue notice under Section 28 of the Act. Counsel for the respondent contended that the claim has already dismissed by the Tribunal and it has been rightly decided that the jurisdictional assessing officer can verify the claim made and the amount claimed by the assessee. He relied for this contention on the following decisions:- Commissioner of Income tax vs. Moonlight Builders and Developers; [2008] 307 ITR 197 (Delhi) "8. Precisely the same thing has happened insofar as these appeals are concerned. The revenue has accepted the primary orders passed by the Tribunal on 14-7-2003 and 14-6-2004 but has chosen to challenge the orders passed by the Tribunal in the present appeals which merely follow these primary orders. There is no reason given by the revenue for this pick and choose attitude or this attitude of accepting favorable orders in respect of one assessed but not accepting the same favorable order in respect of another assessed, without there being any distinction between their cases. Consequently, in view of the arbitrary manner of proceeding in the matter, we do not think that it will be proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Constitution Bench decision in Mafatlal Industries Limited vs. Union of India MANU/SC/1203/1997 : 1997 (89) ELT 247 (SC). This decision was followed in Indian Farmer Fertilizer Co-op. Ltd., vs. CCE, Meerut-II MANU/CE/0495/2013 : 2014 (35) STR 422 (Tri. Del.). If the appellant which is a recipient of a service which is admittedly not taxable files a claim for refund within the prescribed period of limitation, it is axiomatic that it is entitled to do so before the Commissionerate under whose jurisdiction it pursues its taxable activities, business or is a registrant; or before the Commissionerate having authority over the provider of the service. That would be a matter of a legitimate choice for a claimant of refund. In this case, the appellant had initially filed a claim before the Delhi Commissionerate which rejected the same on the ground that it had no jurisdiction since the appellant was pursuing business outside its jurisdiction. The Bilaspur Commissionerate also rejected the refund claim on the ground that the provider of the service is not within its jurisdiction. The rejection by both Commissionerates is in my view unsustainable." Padmini Polymers Ltd. vs. Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ylinders (P) Ltd. Final Order No. 1933 & 1934/2005 dated 22.11.2005. (b) Nagarjuna Constructions Co. Ltd. v. CCE, Hyderabad Final Order No. 324 & 325/2006 dated 15.02.2006 The various case laws cited by the appellants are relevant. It is pertinent to note that when there is upward revision, the Respondent has to pay the differential duty to the Government. As regards the question of unjust enrichment, the Commissioner (Appeals) has clearly given a finding that even though the Respondents pay high duty, the actual bill is settled only on the correct price finalized. In other words, when there is downward revision of prices, the Respondents collect only the appropriate duty from the oil companies and not the higher duty which they had paid to the Government. This clearly indicates that there is no unjust enrichment. In these circumstances, rejection of refund claim on account of time bar and unjust enrichment cannot be sustained. There is no merit in the Revenue's appeals. Hence the same are rejected." Commissioner of Cus., Tuticorin vs. Virudhunagar Textile Mills Ltd. 2008 (230) E.L.T. 411 (Mad.) 16. It is on record that in the cross objection dated 15.07.2006 filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by limitation of time as prescribed under Section 11B ibid. 10. In view of the foregoing, the appellant's eligibility for refund of service tax is prima facie sustainable on legal grounds. Since the appellant is located in the jurisdiction of service tax authorities of Kota, before whom the refund application was filed on 17.01.2011, the required verification of documents may be carried out by the jurisdictional Assistant commissioner of Service Tax, who is directed to examine the claim and dispose the same in view of the findings above." In our considered opinion, it is always better to allow the assessee to claim from his jurisdictional Commissioner since it is very easy to claim the same and it is settled preposition that the person who paid the amount to an authority, must claim the refund from the same authority. In that view of the matter, we are in complete agreement with the view taken by the Tribunal. For the jurisdiction, we are of the opinion that if question is decided to keep open for the assessee to claim on two places, will lead to criminal wastage of time inasmuch as the non jurisdictional Commissioner has to verify from the Commissioner for the payment made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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