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2015 (11) TMI 224 - CESTAT MUMBAI

2015 (11) TMI 224 - CESTAT MUMBAI - TMI - Denial of refund claim - Notification 6/2010-ST dated 27/02/2010 - Export of service - Held that:- onsite services rendered by the appellants abroad would qualify for being termed as export of service. - Appellant-assessee had exported the services, received the payment in convertible foreign exchange. We find that, on the factual matrix, the refund is liable to be sanctioned to the appellant-assessee as this bench, in the appellant-assessee’s own case [ .....

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Shri C J Mathew, Member (Technical) For the Petitioner : Shri V. Sridharan, Sr. Advocate with Shri Vinay Jain, Chartered Accountant For the Respondent : Shri V.K. Singh, Special Counsel ORDER Per: M.V. Ravindran: All these appeals are disposed of by a common order as the issue involved is the same. 2. Revenue as well as the assessee are in appeal against the Order-in-Appeal No: PIII/RP/013/2013 dated 16/01/2013 and Revenue isin appeal against the Orders-in-Appeal Nos: PIII/RP/92-98/2013 dated 30 .....

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the lower authorities and part of the refund claim was allowed and part was rejected. Against such rejection of the refund claim, the assessee-appellant preferred appeal before the first appellate authority. The first appellate authority also allowed partly the contention of the appellant-assessee and did not agree in few refund claims and rejected the same. Department is aggrieved on the ground that the first appellate authority erred in recording a finding that the on-site services provided by .....

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eligible to be sanctioned on the ground that the only condition needs to be satisfied is the payment for such services are received by the appellant-assessee in convertible foreign exchange. He submits that this view is expressed in paragraph 5.4 of the judgment of the Tribunal reported in 2014 (36) STR 332. It is also his submission that Revenue was aggrieved by such order and preferred an appeal before the Hon ble High Court of Bombay and their Lordships dismissed the appeal by a speaking orde .....

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rders. Accordingly, Cross-objections are disposed of. 7. We find that the issue involved in this case is regarding refund claims for the period post 27/02/2010 when the legal provisions of Export of Service Rules, 2005 that need to be considered is amended by Notification 6/2010-ST dated 27/02/2010. Provisions of Rule 3 of Export of Service Rules, 2005, wherein the conditions that has to be satisfied for accepting an export of service, was amended and such amendment needs to be considered in thi .....

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ndings: 5.4 From the legal provisions as extracted above, it may be seen that for the period post 27-2-2010, the only condition required to be satisfied to constitute export of service is that payment for such services should be received by the service provider in convertible foreign exchange. There is no dispute in the present case that the appellant has received the consideration for the service rendered from the service recipient abroad in convertible foreign exchange both in respect of offsh .....

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-2010. In view of this legal position, Order-in-Appeal No. PIII/RS/120/2012, dated 30-3-2012 (ii) PIII/RS/128/2012, dated 17-4-2012 (iii) PIII/RS.154/2012, dated 30-4-2012 & (iv) PIII/RS/181/2012, dated 29-5-2012 cannot sustain and the appellant will be eligible for the refund amounts covered by these orders which has been denied to them for the reason that the refund claims pertain to the period after 27-2-2010 and the condition of export as provided in Rule 3(2) has been satisfied. Similar .....

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as filed the appeals. 9. The above said ratio would squarely apply in the case in hand. We find that Revenue was aggrieved by such an order of the Tribunal and preferred an appeal before the Hon ble High Court of Bombay. Hon ble High Court, while dismissing the appeal of the Revenue, by a speaking order, recorded as under: 4. Reliance placed by Mr. Kantharia on the explanation is misplaced because that explanation only explains as to what could be meant by the term India for the purpose of the R .....

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