N.P. Gupta, J. - (1.) THIS appeal has been filed by the assessee seeking to challenge the impugned orders of the Tribunal, so also of the authorities below. The appeal was admitted vide order dated 14 -2 -2007, on the following substantial question of law: Whether in the facts and circumstances the claim to refund of service tax which has been paid in excess wrongly could have been refused?
(2.) THE necessary facts are, that the assessee voluntarily deposited certain amounts with the department, purportedly representing service tax on different services, which were charged by the assessee from its sister concerns/clients, for the period September 1999 to May 2000. Realising that those services were not chargeable to service tax, the assessee issued credit notes with respect to the entire amounts to its concerns/clients, and lodged a claim for refund on 24 -11 -2000, for a sum of Rs. 3,40,040/ -, which was subsequently revised on 18 -12 -2000 to Rs. 3,36,980/ -. The learned Assistant Commissioner issued show cause notice to the assessee, calling upon, as to why the claim for refund be not rejected, as the assessee has not produced the evidence to establish justification of the claim. This notice was replied to the effect, that they would furnish original invoices raised on account of non -taxable services, and the original debit/credit notes raised in favour of the clients, and evidence regarding payment received only for the balance amount after adjustment of such credit notes.
(3.) HOWEVER , the learned Assistant Commissioner found, that the representative of the company, who appeared showed credit/debit notes issued to their clients/sister concerns, but could not produce invoices, details/evidence of value, ascertained for non -taxable/taxable services. With this, it was also found, that the assessee -company as a whole is registered, and has been depositing service tax, which covers all taxable services rendered by the company to its clients, and that the main purpose of carrying on the operations of the company is to centralise all the professional functions in a totally de -centralised environment, through recruiting the professionals who are expert in the particular field. The learned Assistant Commissioner also found, that the assessee did not furnish complete details and evidence relating to refund claim to verify amount claimed by the assessee. The claim and documents did not show as to how they arrived at the value of non -taxable services, and that mere production of statement showing value of unit -wise taxable services and services, which are non -taxable services cannot be considered authentic/genuine document, for the purpose of granting refund. It was also found, that nowhere the evidence produced by the assessee establish, that the service tax collected by them has not been virtually passed on to their clients/customers, and thus, it was observed, that incidence of burden has been passed on to the clients/customers, apart from the fact that assessee has collected tax without authority of law for non -taxable services, and by merely raising credit notes, does not authorise the assessee to claim refund. Thus, the prayer for refund was rejected.;