KOTHARI INFOTECH LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THESE two appeals are directed against orders in appeal No. OIA No. RKA/129/SRT -I/2011, dated 16 -3 -2011 and OIA No. RKA/130/SRT -I/2011, dated 16 -3 -2011. Since these appeals raise a common question and in respect of the very same assessee they are being disposed of by a common order. Background of the case, filtering out necessary details, is that appellants are marketing agent of various printing machines in India supplied by their foreign supplier viz. M/s. Toshin Kogyo Co. Ltd., of Japan. The assessee filed refund claim of Rs. 5,02,807/ - on 3 -11 -2008 in respect of service tax paid between the period from 13 -4 -2006 to 9 -2 -2007 for the financial year 2005 -06 & 2006 -07 under the category of "Business Auxiliary Service" on the grounds that they are rendering their services as a commission agent to their foreign supplier viz. M/s. Toshin Kogyo Co. Ltd., of Japan for marketing their various printing machines in India and getting their payments in the form of commission in convertible foreign exchange. The assessee further claimed that they were never liable to service tax under the category of "Business Auxiliary Service".

(2.) AGGRIEVED by such an order, appellant preferred appeals before the first appellate authority. First appellate authority has rejected the appeals on the ground that the refund was filed on 3 -11 -2008 for the service tax paid by them during the period 13 -4 -06 to 9 -2 -2007.

(3.) LD . D.R. on the other hand would submit that the appellant had discharged the service tax liability on his own volition. It is his submission that having discharged the service tax liability on his own, he should have filed the refund of the same if he felt that said service tax liability does not arise. For this proposition he would rely upon the Final Order Nos. A/1574 -1575/WZB/AHD/2012, dated 29 -10 -2012 in the case of CST, Ahmedabad v. Gujarat Road Transport Corporation.