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2015 (10) TMI 1738 - CESTAT MUMBAI

2015 (10) TMI 1738 - CESTAT MUMBAI - TMI - Refund of Service tax paid initially on commission received for orders to procure and products sold by principal located outside, in India - Export of services - Period of limitation Revenue contends that services rendered are of marketing of products and cannot be said as export services - Provisions of section 11B would be applicable for claim of refund.

Held That:- Respondent rendered services to foreign principle in respect of products ma .....

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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 and granted the refund of the amount without considering the provisions in correct perspective. 4. T .....

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nce, Revenue is challenging the said order. 5. Learned departmental representative would submit that the service tax which is rendered by the appellant are on a commission received on the products which are sold in India, said cannot be called export services. It is his submission that the services rendered by the appellant of marketing of the products has to be discharged as the services rendered in India, It is also his submission that provisions of section 11B would be applicable for claim of .....

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ted 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 r .....

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orders procured and the Products sold by their foreign principals. Such service of marketing the products for foreign principals for consideration i.e. commission is the service classifiable under the category of Business Auxiliary Service. The issue regarding whether such services which are Tendered within India for their principals outside India and which results in import of goods for those principals, amounts to export or not has been clarified by the Board vide Circular No. 111/5/2009 ST d .....

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of IBM India (P) Ltd. vs. CCE, Bangalore (2010 (19) STR 520 (Tri. Bangalore) and-Blue Star Ltd. vs. CCE, Bangalore (2008 (11) STR 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 S .....

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submission of refund claim in form 'R' instead of ASTR is only a procedural mistake and cannot result in denial of their claim of rebate. There are no other conditions under Notification No. 11/2005. The findings of the adjudicating authority therefore that the procedure laid down under this Notification had not been fulfilled cannot be sustained. 8. The adjudicating authority has then gone on to hold that the claim was barred by limitation in terms of Section 11B as also by doctrine of .....

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9. From the above reproduced findings it can be seen that the first appellate authority has considered the entire issue from all angles, against such reasoned order, the grounds of appeal as taken by the revenue are as under. 1. Commissioner (Appeals) has allowed the appeal and set aside the order-in-Original in question by holding that there is no limitation 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 l .....

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also find strong force in the contention raised by the learned counsel that an identical issue is now settled by the Tribunal in the case of HINCON Technoconsult Ltd. (supra). I reproduce the relevant paragraphs. 4. Being aggrieved, the Revenue have filed the present appeal before this Tribunal on the ground that by virtue of Section 83 of the Finance Act, 1994, the provisions of Section 11B of the Central Excise Act are applicable to Service Tax which provides for filing of refund claim within .....

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