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2013 (11) TMI 250 - AT - Service TaxRefund claim - Commission paid to the agents - recovery of refund already granted - Held that:- The first appellate authority, on an appeal filed by the Revenue has come to a conclusion that the said Notification 9/2009-ST grants refund of the amount of service tax utilised in SEZ area, if the same is paid under Section 66 of the Finance Act, 1994, while the appellant herein has paid the service tax under Section 66A of the Finance Act, 1994. We find strong force in the contentions raised by the learned counsel that the provisions of Section 66A were clarified as not a charging Section by itself but created a legal fiction to charge the services which were rendered to the service recipient in India. This clarification is given by the Board by a Circular No. 354/148/2009/TRU dated 16.7.2009. If the Board is of the view that Section 66A, is not a charging Section by itself and the charging Section remains 66, in our view, taking a holistic approach towards the issue wherein it is not disputed that the appellant is situated in SEZ area, has paid the service tax and the goods are exported, denial of the refund claim to the appellant only on hyper- technicalities, seems to be incorrect - Prima facie appellant is eligible for the refund and hence impugned which sets aside the refund filed by the appellant seems to be incorrect. We find that the appellant has made out a prima facie case for the waiver of pre-deposit of the amounts involved. Application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Decided in favour of assessee.
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