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2019 (11) TMI 562 - AT - Service Tax100% EOU - Refund of service tax - export of services - applicability of Section 11B of the Central Excise Act, 1944 - HELD THAT:- This Bench after considering the plea of the Ld. Consultant Shri. S. Ramachandran that the payment of service tax in respect of Renting of Immovable Property was by mistake however, concluded, that the refund could not be claimed under Rule 5 ibid - It is surprising to note as to how the adjudicating authority chose to read conclusion as direction, which was not there, in her order dated 31.10.2017 as to the filing of a separate claim under Section 11B ibid. She has also gone farther, when she concludes that clause (ec) to Explanation B of Section 11B ibid would come to the rescue of the appellant. The appellant consciously filed its application for refund under Rule 5 ibid and even though there were no such directions by this Bench, it impressed upon the adjudicating authority to obtain an order and succeeded. The appellant taking a cue from the earlier order of this Bench that Rule 5 ibid could not be invoked, chose to file an application under Section 11B ibid. It is intriguing to find that no appeal was filed against the first order of this Bench which rejected the appellant’s claim made under Rule 5. However, in the subsequent order of this Bench which has been extensively relied by the appellant, this Bench has concluded that the denial of refund under Rule 5 of the CCR, 2004 was not justified. Appeal dismissed.
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