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2022 (1) TMI 319 - AT - Service TaxRefund of service tax - rejection on the ground that services were not exported, no nexus between services availed vis a vis services rendered as well as missing/ ineligible invoices - time limitation - HELD THAT:- The relevant Circular No. 141/10/2011-TRU dated 13.05.2011 on which learned Commissioner (Appeals) had placed heavy reliance but a comparison at his order at page 11 & 12 vis-avis the content of para 3 & 4 of the said Circular dated 13.05.2011 would clearly indicate that he had applied the provisions partly without thoroughly examining the clarification made in that Circular in its entirety. It is needless to mention here that appellant’s claim is to be supposed to be determined in terms of Circular No. 111/05/2009 dated 24.02.2009. Basing on which this Tribunal has passed several orders including in the case of the COMMISSIONER OF SERVICE TAX-VII MUMBAI VERSUS M/S. ABBOTT HEALTHCARE PVT. LTD. [2019 (12) TMI 232 - CESTAT MUMBAI] and M/S BLACKSTONE ADVISORS INDIA PVT. LTD. VERSUS COMMISSIONER OF C.G. ST. -MUMBAI SOUTH [2019 (11) TMI 1459 - CESTAT MUMBAI]. Moreover, as could be noticed during hearing of the appeal and subsequent filing of proof on 29.10.2011 by way of additional evidence, appellant had filed an application for rectification of mistake in the order passed by the Commissioner (Appeals) in forming an opinion that appellant is a subsidiary of Foreign Institutional Investors (FIIs) without having any existence of its own, besides other grounds and it was not dealt with by the Commissioner (Appeals). Going by para 4 of the said Circular dated 13.05.2011, it can be said that such an opinion of holding the appellant as passive holding/subsidiary company or associated enterprise has a bearing on determination of its eligibility as an export service provider and without hearing the appellant on this score, no opinion should have been formed by the Commissioner (Appeals). This is a fit case which is required to be remanded back to the Commissioner (Appeals) to re-examine the appellant’s eligibility to get refunds in respect of those 4 items after reexamination of the Circular dated 13.05.2011 and its applicability in the case of appellant disregarding the place of provision of service Rule, 2012 that came into force after the claim period - appeal allowed by way of remand.
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