9911796707
TMI Blog2025 (3) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the appellant got registered with the department under the category of 'Business Auxiliary Services'. The appellant filed a refund claimed of Rs.5,87,179/- on 24.09.2021 on the ground that the appellant is engaged is sale and purchase of SIM cards and the activity being trading, was not liable to service tax. They were served with the Show Cause Notice No. 379/2013/2655 dated 21.10.2013. The demand proposed in the said show cause notice was dropped vide Order-in-Original (O-I-O) No. 46-66/2020-21 dated 22.07.2021. Pursuant to the said order the impugned refund claim was filed. 1.2 While scrutiny of the said refund claim, department objected the claim on following grounds: a) Since appellant has not filed any ST-3 returns nor even with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 and deposited the service tax for the financial year 2008-09 on 31.03.2009. The show cause notice dated 21.10.2013 proposed the demand of service tax amounting to Rs.23,96,196/ on the value of Rs.2,19,59,215/ received as discount / incentives from M/s Vodafone DigiLink Ltd., Jaipur against providing 'Business Auxiliary Services' to M/s. Vodafone during the period 2008-09 to 2011-12. M/s Vodafone also conveyed that appellant has no liability of paying service tax vis-a-vis the amount received from M/s Vodafone. Under the said bonafide belief that the appellant did not take the registration nor deposited service tax nor even filed the ST-3 returns. The department's appeal with respect to the similar issue was filed before Hon'ble Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the services for which demand was dropped. The amount so deposited by the appellant has neither been discussed in show cause notice dated 21.10.2013 nor in the OIO dated 22.07.2021. Hence there is no infirmity in the order under challenge. The appeal is prayed to be dismissed. 5. Having heard both the parties and perusing the records we observe following to be the admitted facts: - (i) The appellant was engaged in selling SIM cards of M/s Vodafone Digilink, Jaipur against receiving commission / incentives. (ii) The appellant was not registered with service tax department till February 2009. (iii) It got registration when department vide a letter proposed a demand for the year 2008-09 and asked appellant to take Service Tax Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was deposited on 31.03.2009 towards the sale of SIM cards of financial year 2008-09, the tax was paid after the said activity of sale hence the issue of unjust enrichment of appellant does not otherwise arise. 7. Coming to the ground of rejecting the refund claim being time barred we observed that the claim is filed under section 11B of Central Excise Act, 1944. This section read with section 83 of Finance Act, 1994 provides for period during which refund claim is required to be filed. The period so prescribed is 'before expiry of one year from the relevant date. The term "Relevant Date" is defined in the explanation to the section 11B itself. Explanation B(ec) reads as follows: - "Relevant date" means- (ec) in case where the duty bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rences require a different treatment so that there is assurance of consistency uniformity, predictability and certainity of judicial approach." 9. Finally coming to the lack of evidence as a ground of rejection of present refund claim we observe that the authorities below have opined that due to non-availability of ST-3 returns, it cannot be confirmed that the amount as deposited by the appellant was meant for providing the services for which the demand was dropped vide order dated 22.07.2021. However, as discussed above, it has been settled that the activity of sale of SIM cards does not invite any service tax liability on the amount of commission / incentive received for rendering such activity. The question of any service tax liability ..... X X X X Extracts X X X X X X X X Extracts X X X X
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