Custom, Excise & Service Tax Tribunal
M/S. Hot Spot Color Lab vs C.C.E. Indore on 6 October, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Appeal No. ST/1848/2010-ST(SM)
[Arising out of Order-in-Appeal No. IND/305/2010 dated 29.09.2010, by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Indore].
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Hot Spot Color Lab. .Applicants
Vs.
C.C.E. Indore .Respondent
Appearance:
Shri A.K. Batra, Advocate for the Applicants Shri H.C. Saini, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Date of Hearing: 16.09.2016 Date of Pronouncement: 06.10.2016 FINAL ORDER NO. 54058/2016-ST(SM) Per Archana Wadhwa:
The appellant is engaged in providing services under the category of photography service and is registered with the service tax department since 2001. During the audit conducted in November 2006, it was found that the appellant was discharging its service tax liability only on the value of the services and not on gross value inclusive of value of materials, in terms of notification number 12/2003 dated 12.06.2003. The audit objection was raised to the effect that service tax is required to be paid on the gross amount received by the appellant and accordingly the Revenue sought explanation from the assessee as to why the service tax should not be confirmed on the gross value.
2. In view of the above developments, the appellant deposited the differential service tax of Rs.1,51,881/- vide challans dated 02.12.2006 and 01.03.2007. As the assessee had deposited the disputed differential service tax amount, no proceedings were initiated against them by way of issuance of show cause notice.
As per the appellant the disputed issue i.e. whether the value of the goods is required to be added in the value of the services and as to whether a service provider under the photography services was required to discharge service tax on the gross value, was subsequently settled by the Honble Supreme Court on 23.04.2009, when the appeals filed by the Revenue against the Tribunals orders in the case of Shilpa Colour Lab Vs. Commissioner 2007 (5) STR 423 (Tri-Bang.) and Shri Roopchayya Colour Studio Vs. Commissioner 2008 (11) STR 125 (Tri-Bang.) was dismissed. The consequence of dismissal of Revenues appeal by the Honble Supreme court was that the value of the material shall not be included while computing the value of the services.
3. Within a period of two months from aforesaid declaration of law by the Honble Supreme Court, the appellant filed the refund claim of Rs.1,51,881/- dated 13.06.2009. They were issued the show cause notice dated 16.09.2009 proposing to reject the refund claims as barred by limitation. The notice culminated into an order passed by the original Adjudicating Authority rejecting the refund as barred by limitation. The said order of the Assistant Commissioner was upheld by Commissioner (A).
Hence the present appeal.
4. After hearing both the sides duly represented by Shri A.K. Batra, Advocate for the Applicants and Shri H.C. Saini, DR for the Respondent, I find that the dispute essentially relates to the fact as to whether the amount deposited by the appellant was service tax amount in which case the provisions of section 11B as regards limitation would apply or the same is required to be considered as deposit as contented by the appellant in which case no limitation would apply. Both the sides have drawn my attention to various decisions in support of their contention. It is well settled law that any deposits made by an assessee towards a demand which is disputable, will not attract the provisions of limitation, whereas any payments made towards the tax amount would attract limitation provisions.
5. On going through the facts of the present case I find that it was during an audit objection that differential demand of Rs.1,51,881/- was found to have not been paid by the appellant. The appellants were asked for an explanation and consequently they deposited the said amount of Rs.1,51,881/- vide their challan dated 02.12.2006. In as much as the deposit of the differential service tax was not disputed by the assessee and was deposited, no proceedings were initiated against them by way of issuance of show cause notice under section 11A.
6. The appellants kept quiet for a period of three years and it is only after the Supreme Courts decision in other assessees case laying down that the value of the materials is not required to be added in the value of the services, was passed, the appellant approached the Revenue for refund of the excess amount deposited by them. However, by that time a period of three years had already lapsed. When the assessee at the time of deposit of the dues never contested the same and deposited the same as service tax under the accounting head of service tax, it has to be considered that the appellant agreed with the view of the audit, accepted their liability and deposited the service tax, without contesting the same. It is not the appellants case that the said service tax was deposited with a protest to the Revenues stand. If that be so, the payments made by the appellant has to be considered as service tax payment and not as deposit.
7. Having held that the payments made by the appellant were on account of differential amount of service tax and was not mere deposit during the period of investigation, the provisions of section 11B would admittedly apply. As per the said provisions, the refund can be staked only within the period of one year from the relevant date. The authorities working under the said act are bound by the provisions of the act, and cannot travel beyond section 11B. The appellants claim for refund was based upon the declaration of law by the Honble Supreme Court in the case of other assessee and not in appellants own case. As such the same was not arising as a consequence of any higher appellate order passed in the said assessees case.
8. The refund claim having been admittedly filed after a period of one year from the date of payment of the same, stands rightly rejected by the authorities below on the ground of limitation. I find no infirmity in the views adopted by the lower authorities. Accordingly, the impugned orders are upheld and appeal is rejected.
[Pronounced in the open Court on 06.10.2016] (Archana Wadhwa) Member (Judicial) Bhanu 2 ST/1848/2010-ST(SM)