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2014 (11) TMI 464 - AT - Service TaxDenial of refund claim - Unjust enrichment - payment of service tax is under protest or not - Notification 21/2009-ST - Held that:- It remains beyond doubt that the service tax levy during the period 2006 was operative only in the designated areas i.e. areas designated by notifications issued by Ministry of External Affairs and made applicable for levy of service tax under Service Tax notification No. 1/2002-ST dt. 1.3.2002. The survey sites where the appellants conducted their operations of seismic survey did not fall in the designated areas. It was only in 2009 that notification No. 21/2009-ST extended the service tax levy to the continental shelf and EEZ in which their survey sites did fall. In the interpretation of a statute, when a person is held to be eligible to obtain the benefit of exemption notification, the same should be liberally construed. It is clear from the judgement that it would apply to cases where the effect of a beneficial statute is sought to be extended. In the present case we have a reverse position where the effect of the amended notification if read retrospectively will have the effect of punishment. We therefore do not agree with the order of Commissioner (Appeals), who has not read the judgement in its proper perspective. Appellant only have a representative in India for communication purposes. The service was actually provided outside India because it was not performed in the designated areas i.e. in India. Even otherwise, the import of services became leviable to tax only w.e.f. 18th April 2006 and the period of dispute is prior to this date. In the present case there was no order of assessment. There is no assessment order against which the appellant could file appeal. The appellants were simply asked to pay during investigations. And they deposited the amount under protest. This 'protest' itself is a challenge to the assessment. They have produced a certificate from ONGC that service tax has not been passed to ONGC & a certificate from the company's statutory auditors that the amount of service tax deposited is shown as receivables in the company's books which facts have not been controverted by the Commissioner. - Decided in favour of assessee.
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