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2022 (3) TMI 1103 - AT - Service TaxRefund of service tax - Business Auxiliary services - export of service or not - non-production of Foreign inward remittance certificate - HELD THAT:- The Commissioner (A) had held that it was only an inadvertent error, which finding has also been accepted by the revenue. Although de-novo order was dutifully paused, but none of the findings, observations and directions contained in the order of the Commissioner (A) has been adhered to or given effect to or followed by, the adjudicating authority. The impugned order cannot be sustained since the same is contrary to the accepted OIA, and also because, there being an order of an appellate authority containing factual findings in the first round which has attained finality, the same is binding on the revenue. The only course therefore available to the revenue is to follow the directions and findings contained in the said OIA and pass a consequential order. Instead, the authorities have proceeded tangentially as though the said findings of the Commissioner (A) are non-est., which is not the correct approach which amounts to judicial impropriety and hence, contrary to the prevalent judicial hierarchical structure. The impugned order cannot be sustained, and is set aside. In view of this, it is held that the appellant’s service would qualify as export service, ARVs are heavy vehicles and hence, are not covered under Section 65(9) ibid. and hence the ST paid under RCM was by mistake as claimed by the appellant, which qualifies for refund. The authorities below have also denied the refund holding that the appellant had acted as a middleman/agent, but even that may not stand since, in the first place, they have not denied the receipt in foreign currency; and secondly, there is no independent verification whether the services of appellant falling within the ambit of BAS would qualify as export of service or not. The appeal is allowed - decided in favor of appellant.
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