COMMISSIONER OF SERVICE TAX Vs. RELIANCE COMMUNICATION LTD.
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
COMMISSIONER OF SERVICE TAX
RELIANCE COMMUNICATION LTD.
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P.S.PRUTHI,MEMBER (T) -
(1.)THIS appeal filed by revenue is directed against the impugned Order in Original number 3/ST -II/SJS/2010 dated 10.5.2010 passed by Commissioner Service Tax Mumbai -11.
The respondents, Ms. Reliance Communications Ltd. while providing telecom services sold recharge vouchers (RCV) to distributors at a discount to the printed MRP (maximum retail price) which is clearly indicated in the sale invoices raised on the distributors. For the month of November 2005, service tax was paid by them on the prepaid RCVs, by considering the MRP printed on the RCVs as cum tax price. But since the value realized on sale of RCVs was less than the MRP, they claimed refund of excess service tax paid. The Assistant Commissioner sanctioned the refund amount. In revision proceedings, the Commissioner in passing the impugned order relied on section 84 of the Finance Act 1994, before its substitution on 19.08.2009 which reads as under:
"Revision of Orders by the Commissioner of Central Excise
1) The Commissioner of Central Excise may call for the record of a proceeding under this Chapter in which an adjudication authority subordinate to him has passed any decision or order and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Chapter, pass such order thereon as he thinks fit.
2) No order which is prejudicial to the assessee shall be passed under this section unless the assessee has been given an opportunity of being heard.
3) The Commissioner of Central Excise shall communicate the order passed by him under sub -section (1) to the assessee, such adjudicating authority and the Board.
4) No order under this section shall be passed by the Commissioner of central Excise in respect of any issue if an appeal against such issue is pending before the Commissioner of Central Excise (Appeals).
5) No order under this section shall be passed after the expiry of two years from the date on which the order sought to be revised has been passed."
2.1 As section 84(1) states that the Commissioner in review proceedings may pass such order subject to the provisions of this chapter, the Commissioner concluded that any order passed by him in the matter of recovery of service tax erroneously refunded would be subject to the provision of section 73 of the Finance Act 1994. And Section 73(1) requires that the show cause notice for recovery of refund erroneously sanctioned should be issued within one year from the relevant date. In the present case the refund order was passed by the Assistant Commissioner on 9.7.2008 whereas the show cause notice for recovery was issued in terms of Section 84 read with Section 73, on 25.2.2010 and which culminated in the impugned order of Commissioner. There being no circumstances for applying the extended period of limitation of five years, the Commissioner held that the show cause notice dated 25.2.2010 issued for recovery in terms of Section 84 is beyond the prescribed period of limitation of one year and therefore no recovery can be effected under the show cause notice.
(2.)HEARD both sides.
(3.)THE learned AR appearing on behalf of Revenue reiterated the points set out in the appeal. The AR tried to draw a distinction between the erstwhile section 84 and the new section 84 introduced from 19.08.2009, and stated that in view of the explanation appended to the new section 84, there is an error in the Commissioner's order.
The learned counsel for the respondent stated that the Commissioner in the impugned order has correctly come to the conclusion that although the revision proceedings under erstwhile section 84 must be concluded by passing of an order within two years in terms of clause (5) of section 84, the notice for recovery of refund under section 73(1) must be issued within the period of one year in view of the phrase 'subject to the provisions of this chapter' in clause (1) of section 84.
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