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Service Tax - Case Laws
Showing 181 to 200 of 2349 Records
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2014 (12) TMI 421
Waiver of pre deposit - Cenvat credit - admissibility of credit on inputs/capital goods, namely structures of iron and steel towers and pre-fabricated buildings etc. - Held that:- As regards the impugned Cenvat Credit of ₹ 1,13,90,700/- relating to input services the appellants have referred to several judgments mentioned above in their support where full waiver has been granted even in respect of this issue. Appellants have categorically stated that the situation of the type referred to by the Ld. AR does not exist in their case. Appellants have not sought waiver of pre-deposit of credit of ₹ 4,99,997/- denied for being availed of without proper documents - partial stay granted.
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2014 (12) TMI 420
Refund claim - telecommunication service to international roamers - Export of service - Held that:- service rendered by the respondent is the telecom service provided to customers of foreign telecom service provider as international inbound roamers while they are in India. Such services, have been held to be services provided to foreign telecom service providers for which consideration has been received in convertible foreign exchange. Therefore, this Tribunal in the order cited supra held them to be export of services in terms of the Export of Service Rules, 2005 following the precedent decision of the Tribunal in the case of Paul Merchant Ltd.- [2012 (12) TMI 424 - CESTAT, DELHI (LB)]. Thereafter, the same ratio has been followed by this Tribunal in a series of decisions in GAP International Sourcing (I) Pvt. Ltd vs. Comm of ST- [2014 (3) TMI 696 - CESTAT NEW DELHI], Simpra Agencies - [2014 (6) TMI 354 - CESTAT NEW DELHI], SGS India Pvt. Ltd. - [2014 (5) TMI 105 - BOMBAY HIGH COURT]. Therefore, in the present case also, the transaction is one of export and the appellant is rightly entitled for refund/rebate of the service tax paid in respect of such transactions. - Decided against Revenue.
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2014 (12) TMI 419
Waiver of pre-deposit of tax - sponsorship Service - Held that:- demand of service tax of ₹ 15,29,400/- on the amount, that the applicant created provision ‘Sponsorship expenses’ every year in their books of account. The learned Counsel for the applicant drew the attention of the Bench to the relevant portion of the Adjudication Order on this issue. On a perusal of the table at Para 9.01 of the order, we find that the applicant made a provisional arrangement for sponsorship in the books of accounts for every year, which was reversed in the subsequent financial year. It is seen from the table that reversed the amounts for the year 2006-07 to 2008-09 as mentioned provisions were reversed in the subsequent financial year. The dispute relates to provisions made in 2009-10. The applicant had contended before the Adjudicating authority that the said amount was reversed in the subsequent financial year 2010-11. Prima facie, we find that the applicant reversed the provisional amount in the subsequent financial year. - applicant has made out a strong prima facie case for waiver of pre-deposit of entire amount of tax along with interest and penalty till disposal of the appeal. Accordingly, pre-deposit of the entire amount of tax along with interest and penalty is waived and recovery thereof stayed till the disposal of the appeal - Stay granted.
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2014 (12) TMI 418
Condonation of delay - Power of appellate authority to condone delay beyond period of 90days - Held that:- in particular sub section (3A) and its proviso, clearly shows that the period of two months is provided for filing of appeal before the appellate authority. However, the appellate authority, if satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the said period of two months, has power to allow filing of appeal within a further period of one month. Thus, total period that is allowed by this provision is or outer limit for preferring appeal is three months i.e. two months as a matter of right and next one months for sufficient cause. It is clearly seen that beyond the said outer limit of three months, there is no enabling provision for the appellate authority to either entertain the appeal or condone the delay. In our opinion, that is the plain reading of the provision. appellate authority under section 85 (3A) of the Act does not have authority to condone the delay beyond 90 days, that being the outer limit as per the said provision. - Decided against petitioner.
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2014 (12) TMI 417
Validity of Rule 5A - power to audit of service tax records - Validity of communication dated 24.09.2014 as at Annexure¬B to the petition under which the Assistant Audit Officer of Principal Director Auditor (Central) has communicated the petitioner that the audit of service tax revenue records of the petitioner's unit would be conducted by a party from the office of the Principal Director Auditor (Central), Gujarat, Ahmedabad in the last week of September 2014 - Held that:- Delhi High Court in case of Travelite (India) Ltd. (2014 (8) TMI 200 - DELHI HIGH COURT) has struck down Rule 5A as unconstitutional. However, Allahabad High Court in case of A.C.L. Education Centre (P.) Ltd. v. Union of India reported in [2014 (1) TMI 1562 - ALLAHABAD HIGH COURT], upheld the vires of the Rule on a concession being made by the counsel for the Union that for the purpose of collecting the information from the assessee to assess the correct tax, the Commissioner may appoint a Chartered Accountant for the purpose of audit and that audit will not be done by any other officer on his behalf.
Prima facie, therefore, if Rule 5A is not valid, a serious question of the powers of the authority to issue the impugned communication would arise. Subsidiary question would be, even if Rule 5A is valid, would the communication in question be covered within the powers of the Commissioner as envisaged under sub¬rule (1) of Rule 5A, which empowers the Commissioner to authorize any person to carry out the inquiry with respect to the accounts of an assessee. Whether such authorized persons can be an outsider of the organization of the Commissioner would also be an issue. - Learned Standing Counsel Shri Qureshi waived rule on behalf of the Union of India. - respondents are prevented from proceeding further in connection with the impugned communication - Application disposed of.
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2014 (12) TMI 416
Waiver of pre deposit - Business Auxiliary Service - Suppression of the actual value of service - Tribunal ordered pre deposit - Held that:- The main plea of the appellant is that due to financial hardship, they are not able to comply with the conditional order of the Tribunal. However, for the plea of financial hardship, the appellant has not filed any particulars to substantiate the plea of financial hardship in the application filed for pre-deposit before the Tribunal. Hence, the plea of financial hardship without any relevant particulars is not a ground for this Court to entertain this appeal filed as against the final order passed by the Tribunal dismissing the appeal for non-compliance of the conditional order - No reason to modify the order of the Tribunal, which has been considerate enough in ordering pre-deposit of approximately 25%, which we find consistently followed by the Tribunal. - Decided against assessee.
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2014 (12) TMI 415
Application to deposit remaining 50% of the amount under the Service Tax Voluntary Compliance Encouragement Scheme, 2013 - declaration made under Section 106 - by virtue of issuance of summon dated 26/28.02.2013, inquiry or investigation, was already initiated before 01.03.2013 - whether the case of the petitioner falls under Sub section (2) of Section 106 of the Finance Act - Held that:- summons were issued on 26 and 28.2.2013. Mere fact that summons were served after 01.03.2013 shall be of no consequence. Thus the first condition of Section 106(2) that such an inquiry or the investigation was initiated before 1.3.2013 was satisfied. The later condition of such an inquiry or the investigation being still pending as on 01.03.2013 was also satisfied. The designated authority was justified in rejecting the declaration of the petitioner.
Equally, merely because the petitioner filed a declaration and summons along with such declaration would not compel the department to accept the same de hors to the provisions of the scheme. Merely filing of the declaration and disclosure of issuance of summons before 01.03.2013 do not give any vested right to the petitioner that such a declaration must be accepted irrespective of the provisions of the scheme. - Decided against appellant.
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2014 (12) TMI 414
Waiver of pre deposit - Commercial training or coaching - Computer Training Services - Held that:- Even as per the statement originally made, the appellant is registered as commercial training and coaching service. 50% of the service tax has been discharged and for the balance, it was claimed that it relates to sale of course material, eligible for exemption. This plea was primarily declined in the order of the Tribunal in [2013 (12) TMI 215 - CESTAT CHENNAI] stating that only standard text books will be considered for exemption and the plea of the appellant was not accepted in the order. On the contrary, on verifying the sample receipts and invoices, the Tribunal came to the conclusion that the amount received from the trainees as course fee was artificially split to avoid payment of service tax. We, therefore, find no error in the order of the Tribunal.
The next plea that Notification No.24/2004-ST dated 10.9.2004 provides exemption for vocational training imparted by vocational training institutes. The said Notification was amended by Notification No.19/2005-ST, which inserted a proviso and explanation, and makes it clear that Notification No.24/2004 will not apply to taxable services provided in relation to commercial training or coaching by a computer training institute. According to the Department, the appellant is a computer training institute. The Tribunal was justified in distinguishing the interlocutary order passed by the Bangalore Tribunal in the case of Rayudu Vision Media Ltd. Vs. Commissioner of Central Excise, Hyderabad reported in [2013 (12) TMI 52 - CESTAT BANGALORE], as it found that it related to a case of training in 2D and 3D animations and it was not a case of computer training, but only a vocational training conducted with the aid of computers. Nevertheless, we find no reason why the Tribunal in the present case should be bound by the interlocutary order passed by the Bangalore Tribunal in the case of Rayudu Vision Media Ltd. Vs. Commissioner of Central Excise, Hyderabad reported in [2013 (12) TMI 52 - CESTAT BANGALORE]. The order passed in the stay petition cannot have binding force.
Tribunal may re-consider the discretion already exercised in Miscellaneous order based on the additional grounds raised. However, prima facie the Tribunal came to the conclusion that the proviso to Notification No.24/2004-ST dated 10.9.2004 clearly excludes the case of the appellant. At this stage, we do not find any reason to differ with the finding of the Tribunal, more so, in view of the decision of the Apex Court in the case of Commissioner of Central Excise V. Sunwin Technosolution P. Ltd. reported in [2010 (9) TMI 71 - SUPREME COURT OF INDIA]. Even on merits, we find that the appellant has not made out any prima facie case to interfere with the order of the Tribunal - Decided against assessee.
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2014 (12) TMI 413
Recovery of cost of bank guarantee furnished by the Respondent No.5 - High Court in [2014 (8) TMI 102 - DELHI HIGH COURT] held that the transaction between the appellant and Respondent No.5 regarding letting out of immovable property would not fall within the taxable service of “airport services” under clause (zzz) of Section 65(105) prior to 01.07.2010 - Held that:- As regards the liability to pay the costs for obtaining the bank guarantee furnished by Respondent No.5 it observed that the appellant was fully aware and had consented to the arrangements as recorded in the award dated 30.03.2011 and as such it was not open for the appellant to seek that Respondent No.5 deposit the entire amount of service tax as the same was contrary to the consent award dated 30.03.2011. It was further observed that despite having such Consent Award in its favour, the appellant insisted on Respondent No.5 securing it by a bank guarantee and as such it is the appellant who must bear the cost for the bank guarantee furnished by Respondent No.5. The High Court thus directed the appellant to pay to Respondent No.5 a sum of ₹ 1.06 crores, being the cost of bank guarantee.
Supreme Court affirm the view taken by the High Court. The interest of the appellant was well secured by the Award dated 30.03.2011 which was a Consent Award. Respondent No.5 had an interim order in its favour passed by the High Court and it was only because of the insistence on part of appellant that Respondent No.5 was directed to furnish the bank guarantee. It is, therefore, but logical and consequential that the appellant must bear the costs for securing such bank guarantee. - Decided against appellant.
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2014 (12) TMI 378
Waiver of pre deposit - Mining of mineral, oil or gas service - Imposition of interest and penalty - Held that:- Activity undertaken by the appellants is mining of iron ore and there is no dispute on that aspect. Iron ore is also an item for which a separate heading is available in the schedule of Tariff. It is also covered by Chapter 26. Therefore the same activity of mining of iron ore can be liable to service tax as well as excise duty. When it comes to Central Excise duty, excise duty will be leviable on the total transaction value and on the entire quantity of iron ore extracted. When it comes to service tax, the amount paid as consideration for the iron ore extraction would be the amount leviable to service tax. The nature of taxes is entirely different; taxable events are different.
The mines were owned by individuals who are partners of Sree Gavisiddeshwara Minerals. The right to extract/mine the ore and sell was given to Sree Gavisiddeshwara Minerals. Sree Gavisiddeshwara Minerals and all the partners constituting the partnership firm entered into a contract with the appellant and entrusted the work of mining of ore for a consideration of 64% of the ore that is extracted. In such a situation, when two parties viz. Sree Gavisiddeshwara Minerals and the appellant have treated themselves as two separate entities, obviously the appellant becomes the service provider and the others who owned 36% become the service receivers. In fact in this case, the iron ore mined is initially handed over to Sree Gavisiddeshwara Minerals, who in turn allocated 64% to the appellant and distributed the balance 36% to the other partners. Therefore the appellant, a limited company, has provided a service of mining of ore to Sree Gavisiddeshwara Minerals, a partnership firm. Therefore we consider that prima facie, the appellant may not have a case - Partial stay granted.
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2014 (12) TMI 377
Waiver of pre deposit - Cleaning Service - slag is removed from the factory to the slag yard for undertaking extraction of metal - Demand of interest and penalty - Held that:- no doubt the slag is removed from the factory to the slag yard. But it is removed for undertaking extraction of metal and not for disposal as waste. Such slag is cooled by spraying water and thereafter metal is removed by using magnetic force. Different types of activities undertaken by them explained in scope of work and the schedule of appellant would show that prima facie except for Sl. No. 4 of the table showing the schedule of rates, the other items cannot be considered as a cleaning activity. Since both the sides could not indicate what exactly is the amount collected by the appellants for each category of activity, the only option available to us is to arrive at an approximate figure we do by dividing the amount paid for cleaning activity under Sl. No. 4 by the total amount payable to the appellant for all the activities per ton - Partial stay granted.
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2014 (12) TMI 376
Exemption under notification No. 1/2006-ST - willful mis-statement / suppression - Abatement of 67% - completion and finishing services - Held that:- It is prima facie obvious that benefit of notification No.1/2006-ST is not available to the appellants in respect of impugned service namely, completion and finishing service in view of the said service having been specifically excluded from the purview thereof. However, they cannot be disallowed to claim the benefit of notification No. 12/2003-ST and the same can be claimed by them even at this stage. However, the benefit of the said notification (No. 12/2003-ST) can be extended only if they satisfy the condition subject to which the benefit thereunder can be granted. It is seen that for the benefit of notification No.12/2003-ST the appellants have to show documentary evidence specifically indicating the value of goods/ material sold. The appellants' claim that they have paid the VAT on 80% of the value may possibly be an indicator of the value of goods involved but it cannot be accepted on the face value in the absence of any documentary evidence to the effect that the said VAT was indeed paid on the goods/material used in respect of the service on which impugned demands have been confirmed.
While at the stage of deciding their stay application, it is not possible to go into the details of the evidence with regard to the value of such goods and materials sold by the appellants, the fact remains that they have already paid the service tax on 33% of the gross amount received. In view of the this, and having overall regard to the appellants' contention about the goods and materials being a substantial part of the gross amount received, we are of the view that the requirement of section 35F of the Central Excise Act 1944 would be fairly met with a pre-deposit of ₹ 60 lakhs with proportionate interest. - Partial stay granted.
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2014 (12) TMI 375
Waiver of pre deposit - Valuation of goods - Exemption under Not. 12/2003-ST - Whether the value of study material /text books sold by the appellants is includible in the value of commercial training or coaching service - Held that:- clarification in the Board Circular dated 20.06.2003 is misconceived, clearly illegal and contrary to the statutory exemption Notification dated 20.06.2003. Where the legislature has spoken or in exercise of its statutory power exemption is granted by the Central Government under Section 93 of the Act, the CBEC has no manner of power, authority or jurisdiction to deflect the course of an enactment or the exemption granted. Grant of exemption from the liability to tax is power exclusively authorized to the Central Government under Section 93 of the Act. This statutory provision accommodates no participatory role to the Board. In seeking to engraft restrictions on the generality and plenitude of the exemption granted by the Central Government, the CBEC transgressed into the domain of the Central Government under Section 93 of the Act, a course of action clearly prohibited. No notice or cognition can be taken by any authority or such unauthorized exertions by the CBEC. If this illegal and unauthorized condition, imposed on the generality of exemption granted by the Central Government vide Notification No. 12/2003-ST., dated 20.06.2003 is ignored, as it must, the assessee/appellant is clearly entitles to the benefit of the exemption. Appellants have made out a good case for waiver of pre-deposit - Stay granted.
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2014 (12) TMI 374
Refund of service tax - CHA service - Notification No. 9/2009-S.T., dated 3-3-2009 - Exemption to goods supplied to SEZ - Held that:- According to clause-2(f) of the Notification No. 9/2009-S.T., dated 3-3-2009 “the claim for refund shall be filed, within six months or such extended period as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall permit, from the date of actual payment of service tax by such developer or unit to service provider.” In this case, the respondents have good reasons for the delay but the same have been rejected on the ground that the respondent is very big and they are well aware of all the provisions of law and they have the latest communication technologies available to them. In my opinion, since the respondents are eligible for refund claim and this was in the initial period of implementation of new procedure for claiming the refund, the observations of learned Commissioner (Appeals) are valid and condonation of delay by him is in accordance with law. - Decided against Revenue.
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2014 (12) TMI 373
Health Club & Fitness Centre - Assessee a hospital or not - Held that:- Commissioner (Appeals) has taken a stand that the appellant has to show proof that the service provided by them was therapeutic treatment and the department presumed that such service was not provided as part of treatment and hence confirmed the demand. It may not be a right approach. This is not a case where the assessee is claiming the benefit of exemption notification. This is a case where the Revenue has considered that the service provided by the appellant is taxable service. Therefore, obligation to show that the service provided by the appellant is a taxable service is on the Revenue and this basic obligation has not been fulfilled in this case.
The demands have been confirmed on the ground that in three sample cases, the treatment has been taken by the clients for few hours The department had enough opportunity and enough powers to gather necessary evidence to show that the claim of the appellant that the service provided by them is part of treatment was wrong. No such action has been taken by the department. Taking note of the learned counsel’s vehement assertion that in case the Revenue is able to show even in one case that the treatment was provided to tourists as part of the tourism, the appellant is ready to pay the entire service tax, we find that the appellant has made out a case for waiver. Accordingly, the requirement of pre-deposit of the dues adjudged is waived and stay against recovery is granted during pendency of the appeals - Stay granted.
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2014 (12) TMI 372
Security services - Interest u/s 75A - Penalty u/s 76, 77 & 78 - Invocation of extended period of limitation - Held that:- From the records, it is evident that the appellant did not cooperate with the department and did not furnish the copy of the bills raised on various service recipients. Therefore, the department was constrained to take the figures from the books of account and audited balance sheet for computation of the demand. In these circumstances, the appellant’s contention that the Revenue did not provide copies of the documents relied upon is totally devoid of merits and has to be rejected outright. It is also seen from the statements given by the various officers including one Director of the appellant company and also the statements given by the recipient of the services that the appellant has been rendering security agency services to the clients and has charged Service Tax for the services rendered during the impugned period. However, the appellant did not take out any Service Tax registration nor comply with any of the statutory requirements. They also did not remit the Service Tax collected from their customers to the exchequer. Thus, the demand of Service Tax based on the figures furnished in the audited balance sheet of the appellant firm is sustainable in law.
Invocation of extended period of time is also sustainable inasmuch as the appellant deliberately withheld the details of the services rendered from the department and accordingly confirmation of demand invoking the extended period of time is correct in law. Consequently, all the penal provisions would ensue and the penalties imposed on the appellant firm under Sections 75A and 76 for default in payment of Service Tax and under Section 77 for not filing the returns and compliance of the statutory provisions and under Section 78 for evasion of Service Tax by indulging in suppression of facts and wilful misstatement are liable to be confirmed. - Decided against assessee.
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2014 (12) TMI 371
Waiver of pre deposit - Site formation and clearance, excavation and earth moving and demolition service - Suppression of facts - Penalty u/s 77 & 78 - Held that:- On a careful perusal of the two work orders and on examination of the definition of “site formation and clearance service”, we are inclined to take the prima facie view that the transportation of earth excavated from one part of a large area (site for power plant to be set up by Reliance) to another part of the area for the purpose of filling/levelling was also a part of “site formation and clearance service” which includes “earth moving” also. We take this view, considering the totality of the work awarded to the appellant by Reliance. However, the tax paid by Reliance for transportation of earth can be counted as pre-deposit by the appellant towards the demand raised under site formation and clearance service. Moreover, we have found prima facie case for the appellant against the demand for the extended period of limitation. In the circumstances, the service tax and education cesses demanded under site formation and clearance service for the normal period have to be pre-deposited by the appellant and the same have been estimated at around 10.5 Lakhs. - Partial stay granted.
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2014 (12) TMI 363
CENVAT Credit - Whether the appellants were legally permitted to utilize Cenvat credit account for paying service tax on the Goods Transport Agency services and Business Auxiliary Services on which they were required to pay service tax as receiver under reverse charge mechanism - Held that:- when the explanation under Rule 2(p) of Cenvat Credit Rule was deleted only the services actually provided by an assessee could be treated as output services and not the services received by him even if he was liable to pay service tax on such received services. in fact the explanation deeming the taxable services received by an assessee as an output services was also applicable to persons who were neither a manufacturer nor a service provider. It was further clarified that even during the period prior to 19.4.2006 also the service tax on the taxable services received by an assessee on which he was liable to pay service tax under reverse charge mechanism, he was required to pay service tax in cash and not by utilising Cenvat Credit Account. prima-facie case is in favour of revenue - Partial stay granted.
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2014 (12) TMI 334
Denial of refund claim - Business Auxiliary Service - Reverse charge mechanism - Assessee claims that payment of tax made twice - However, Revenue contends that service of the appellant does not fall under the Export of Service Rules, 2005 - Held that:- Activity of the appellant is that they are marketing the product of their foreign counterpart and for which they are receiving certain commission in India. It is also alleged that the said commission has been received by the appellant in Indian rupees therefore they have not complied with the conditions of Export of Service Rules, 2005. It is also alleged against the appellant that as the service has been consumed in India therefore this is not a case of export of services as per Export of Service Rules, 2005. In fact, in case of marketing of product of their foreign counterpart in India but the service of marketing of product a person who is located outside India has consumed the service outside India. In these circumstances, it is held that the case of the appellant qualified as export of service as per Rule 3 (3) (i) of the Export of Service Rules, 2005. The same view was taken by this Tribunal in Blue Star vs CCE in [2014 (12) TMI 25 - CESTAT MUMBAI] wherein the Tribunal has held in such a situation it is a case of export of service.
Whether the payment received by the appellant in Indian currency can be termed as the remuneration received by the appellant qualify as per the Export of Service Rules, 2005 or not - Held that:- In fact the appellant has received the payment on behalf of their counterpart from the client of their foreign counterpart. The same issue is covered by the decision of this Tribunal in the case of National Engineering Industries Ltd vs CCE, Jaipur reported in [2011 (9) TMI 759 - CESTAT, NEW DELHI] wherein on the similar situation this Tribunal held that although payment has been received in Indian currency on behalf of the service recipient located in India from the service provider and in that case it was held that it is a case of export of service. Therefore, following decision in National Engineering Industries Ltd (supra) I hold that the appellant complied with the condition of the Export of Service Rules, 2005. Therefore the appellants are entitled for refund claim. - Decided in favour of assessee.
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2014 (12) TMI 333
Denial of refund claim - bar of limitation - Unjust enrichment - Held that:- Rule 4 of the Export of Service Rules provides for export of service without payment of tax as export of service is not exigible to tax. Further, Rule 5 provides for mechanism for rebate in case the tax has been paid mistakenly or by way of abundant caution. Thus, the amount of tax deposited by the assessee herein is not tax but in the nature of deposit. The same not being tax, there is no time limit for refund of deposit as Section 11B applies to refund of duty/tax only. Further, I find that the ruling in the case of Precision Controls (2004 (7) TMI 498 - CESTAT, CHENNAI) relied upon by the Revenue relates to export of goods and refund under the Central Excise Rules, 1944 and the same is not applicable in the facts of the present case. Thus, the appeal of the Revenue is dismissed - Decided against assessee.
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