TMI Blog2014 (12) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... peal filed by the Revenue, we have also observed that the transaction involved is one of export, and therefore, the service provider is rightly entitled for the refund of the service tax paid. The learned counsel for the respondent also submits that even in respect of the export transaction, if tax is recovered from the customers, the same would not disentitle the tax payer from claiming refund as held by the hon'ble Bombay High Court in the case of Uttam Steel Ltd. vs. Union of India [2003 (8) TMI 55 - HIGH COURT OF JUDICATURE AT BOMBAY]. In Rashtriya Chemicals & Fertilizers Ltd. [2013 (3) TMI 478 - CESTAT MUMBAI], this Tribunal observed that even if grounds have been taken in appeal memorandum but if the same is neither urged nor argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. 3. Since the Revenue did not implement the said order, M/s. Vodafone (India) Ltd. filed a miscellaneous application which was heard by the Tribunal on 30/10/2014 and the Revenue contended that they are filing a rectification mistake application against order dated 21/08/2014. After considering the submissions made, this Tribunal directed the Revenue to file an undertaking to implement the order of the Tribunal and grant refund within three working days from the date of disposal of the ROM application filed by the Revenue. 4. In pursuance thereof, the Revenue has now filed an undertaking dated 20/11/2014. The undertaking states that refund application would be disposed of within three days of receipt of the order dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite of the fact that the same was one of the main grounds of the appeal and the service tax amount has been collected from the customer. It is Revenue's understanding of our order that we have not considered the matter. In para 2 of the order 21/08/2014, we have clearly recorded the contentions urged by the Revenue as follows: The ld. Additional Commissioner (AR) appearing for the Revenue submits that according to the revenue, provision of roaming facility to international roamers travelling in India would not amount to export and therefore, the refunds/rebates are not permissible in law. However, when a question was put to him whether the order of the Tribunal in the respondent's own case has been challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documentary evidence which clearly establish unjust enrichment if the refund is sanctioned to the service provider. In the absence of such documentary evidences, this Tribunal cannot be expected to give a finding that unjust enrichment principle is involved in the transaction as that would be a mere presumption without any basis. We further observe that the learned appellate authority while disposing of the refund claims, in para 35 of his order has observed as follows: 35. The Revenue has contended that the certificate issued by the Chartered Accountant affirming that the incidence of service tax had not been passed on to any other person alone cannot be considered as sufficient evidence in view of the decision in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11B of Central Excise Act, 1944.' [para 4] 4. I am of the considered opinion that the Commissioner (A) is justified in arriving at the above conclusion in holding that the Cess has not been passed on to the buyer. The Chartered Accountant cannot give an incorrect or false certificate, as such issuance of certificate will have penal consequences. It has evidential value and it has to be accepted. 5.4 The contention of the Revenue is that this observation relates to only one of refund claims and not in respect of the five refund claims which was the subject matter for consideration in order-in-appeal No. No. 366 to 370 dated 20/09/2013 and therefore, this observation of the lower appellate authority should be restricted to onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay High Court in the case of Uttam Steel Ltd. vs. Union of India 2003 (158) ELT 274. The hon'ble High Court in the said decision while considering the rebate of duty under Rule 12 of the erstwhile Central Excise Rules on export of goods had held as follows: 41. As stated hereinabove, right to rebate of duty accrues under Rule 12 on export of goods. That right is not obliterated if the application for rebate of duty is not filed within the period of limitation prescribed under Section 11B. In fact, Rule 12 of the Excise Rules empowers the excise authorities to grant rebate of duty oven if some of the procedural requirements are not fulfilled. Even proviso (a) to Section 11B(2) clearly provides that in the case of re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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