TMI Blog2015 (10) TMI 1738X X X X Extracts X X X X X X X X Extracts X X X X ..... t is thus not tax and as such there is no time limit for refund of deposit as Section 11B applies to refund of duty/tax only – Appeal devoid of merits – Dimissed in favour of assessee. - APPEAL No. ST/322/11-Mum - - - Dated:- 11-9-2015 - Mr. M.V. Ravindran, Member (Judicial) Shri B. Kumar Iyar, Supdt. (AR) : For The Petitioner Shri Vinay Jain, C.A. : For The Respondent ORDER Per: M.V. Ravindran This appeal is filed by the Revenue against Order-in-Appeal No. M-I/AV/29/2011 dated 31.01.2011. 2. Heard both sides and perused the records. 3. On perusal of the records it transpires that the Revenue is aggrieved by order of the first appellate authority on the ground that he had set aside the order-in-original an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CON Technoconsult Ltd. and by final order dated 04.09.2014, Tribunal held in favor of the assessee as reported as 2014-TIOL-2373-CESTAT-Mum. He produces a copy of said order. 7. After considering the submissions made by both sides, I find that it is undisputed fact that the respondent has rendered the services to foreign principle in respect of products Marketed in India, on which a commission is received by him. Considering such commission is taxable under Business Auxiliary Services has discharged the service tax liability. Noticing that they are discharged the service tax wrongly, they filed the refund claim. 8. The first appellate authority while setting aside the order in original as recorded the following findings. Relevant para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 23 (Tri. Bangalore). The appellants had therefore indeed exported the services under the category of Business Auxiliary Service. 7. The adjudicating authority has then held that the condition of Notification NO..11/2005 dated 19.4.2005 were not satisfied and that the procedure laid down in the Export of Services Rules, 2005 had not been followed. Further that in the ST3 returns, it was not mentioned that the services had been exported, I find that Notification No. 11/2005 ST dated 19.4.2005 merely requires that the fact of export of services should be established and payment thereof should be received in convertible foreign exchange. The appellants have produced evidence regarding receipt of payment in convertible foreign exchange. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for claiming rebate under notification No. 11/2005 dated 19.04.2005 which is incorrect as all refund claims are subject to the clause of limitation as laid down in Section 11B of the Central Excise Act, 1944. 2. Section 11B of the Central Excise Act, 1944 is applicable in Service Tax matters in terms of Section 83 of the Finance Act, 1994 Explanation to Section 83 Clearly states that refund includes rebate. 10. It can be seen from the above reproduced grounds of appeal that revenue is not seriously contesting the factual position as has been considered by the first appellate authority, while setting aside the order in original. I also find strong force in the contention raised by the learned counsel that an identical issue is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, he prays for upholding the impugned appellate order. 6. Having considered the rival contentions, I find 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 (supra) relied upon by the Revenue relates to export of goods and refund under the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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