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2017 (9) TMI 92 - AT - Service TaxRefund of unutilised CENVAT credit - Investment Advisory Services - export of services - location of recipient of services - order beyond the scope of show cause notice (SCN) - Held that: - there is proper agreement between the parties, for rendering of services by the appellant and receiving of services by the recipient of service, who is located outside India - Clause 3 of the Notification provides that the manner for receipt of foreign exchange by payment in Rupees from the Account of a bank situated in any country other than member Countries of Asian Clearing Union or Nepal or Bhutan - all conditions for export of service, under Export of Service Rules, 2005 have been fulfilled and impugned order is bad for holding that there is no export of service. The appellant as a service provider is entitled to receive both fees and reimbursement of expenses incurred, for rendering the service. As such, the two together form gross amount of service charges, as defined under Section 67 of the Finance Act, 1994. The service has been used and received by the recipient of service located outside India. It is of no consequence, whether such advisory service received by the recipient located outside of India, is used by recipient for making investment decision, for making investment in India. Unjust enrichment - time limitation - Held that: - neither there is any question of unjust-enrichment, nor the refunds of Cenvat credit under Rule 5 of CCR, 2004, are hit by time bar, as no time limit has been provided for utilization of Cenvat credit, once it has been taken. The appellant in the facts and circumstances has admittedly proved that due to its business being export of service, have been unable to utilize the Cenvat credit taken. Accordingly, they are entitled to refund of Cenvat credit without any time bar. Jurisdiction - Held that: - some of the issue not raised and/or decided in the impugned orders are wholly without jurisdiction being- (i) service provided do not classify as export of taxable service, as per Export of Service Rules, as no such allegation is made in show cause notice for the period July, 2007 to September, 2007. Scope of SCN - Held that: - the adjudication orders for the period July' 11 to March' 12, being refund claim dated 29th June, 2012 for ₹ 11,32,572/-, ₹ 13,43,033/- filed on 28th March, 2013 for the period April' 12 to December' 12 and claim for ₹ 18,48,921/- dated 29th June, 2012 for the period, April' 12 to June' 12 are bad, as no show cause notice was issued for these matters and as such, I hold that the adjudication orders are wholly without jurisdiction. Appeal allowed - the adjudicating authority directed to grant the refunds with interest, as per rules - decided in favor of appellant.
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