TMI Blog2016 (8) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants. Held that:- In the present case, the appellants have been all along contesting that the consideration received by them for export of service is not taxable. They deposited the amount only due to pressure from department and investigation was started by DGCEI. The Hon'ble High Court of Karnataka in the case of CCE(Appeals) Bangalore Vs KVR Construction [2012 (7) TMI 22 - KARNATAKA HIGH COURT] has taken a similar view in a a similar set of facts. Following the proposition laid by the Hon'ble High Courts of Kerala and Karnataka, when there is no levy in accordance with the provisions of service tax law the claim for refund cannot be denied on the ground of limitation in terms of Section 11(B) of Central Excise Act. - Ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy of service tax in respect of which payments were received in convertible foreign exchange. That the payment having received from Onconova, in convertible foreign exchange, the services provided by appellant was not liable to service tax. The appellants then filed refund claim on 15-10-2009 in the prescribed Form-R for refund of the Service Tax amount erroneously paid by the appellants. A show cause notice dated 13-7-2010 was issued to them proposing to reject the refund claim on the ground that the claim being time barred. The appellants defended the show cause notice contending that the subject refund claim is not covered by limitation clause envisaged in Section 11(B) of the Central Excise Act. That the amount erroneously paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from Onconova Inc. USA. After adjudication, the original authority confirmed the demand of service tax and interest and imposed equal amount of penalty u/s 78 with an option of reducing penalty of 25% if paid within 30 days from the date of communication of order. The Original authority did not impose penalty u/s 76 of Finance Act. The appellants filed an appeal before the Commissioner (Appeals). Both the above appeals filed by appellants ie. The appeal filed against rejection of refund claim and also appeal filed against demand of service tax were taken up together and disposed by the Commissioner (Appeals) by a common order which is the order impugned. The appellant have thus filed the present appeals. 4. The moot question that ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to remain tax free even after withdrawal of Notification 6/1999 dated 09-04-1999. This clarification issued by the circular would go to show that the services provided by appellants to M/s Onconova Inc. USA in the year 2002 to 2003 being export of services and payment received in FCIR are not exigible to service tax. The learned counsel for the appellant Shri Harish Bindu Madhavan has placed reliance on the judgment laid by Tribunal in SGS India Pvt. Ltd. Vs CST Mumbai 2011,(24)STR 16(Tri.-Mum). The Tribunal in the said case was considering a similar issue and the period of dispute involved therein was between 01-07-2003 to 19-11-2003. The Tribunal observed that there can be no demand of service tax on the ground that exemption notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax of ₹ 1,61,086/- along with interest of ₹ 20,999/- was paid by appellants on 28-02-2008. The date of filing refund claim in Form-R is 15-10-2009. That therefore, the refund claim is time barred. The learned counsel for the appellant submitted that the provision of Sec. 11(B) of CE Act, 1944 will not be applicable to their refund claim as the amount paid by them is not service tax. It was only an amount deposited erroneously under pressure from the department. To fortify his arguements the learned counsel relied upon the judgment laid by Honble High Court of Kerala in M/s Geojit BNP Paribas Financial Services Ltd. Vs CCE CST Kochi 2015-VIL-279-KER-ST. The Hon'ble Court observed as under: The learned counsel for the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also of the view that levy is not in accordance with the provisions of the service tax and therefore, such payment cannot be taken as a payment made relatable to Section 11B of the Central Excise Act . In the present case, the appellants have been all along contesting that the consideration received by them for export of service is not taxable. They deposited the amount only due to pressure from department and investigation was started by DGCEI. The Hon'ble High Court of Karnataka in the case of CCE(Appeals) Bangalore Vs KVR Construction 2012(26) STR195(Kar) has taken a similar view in a a similar set of facts. Following the proposition laid by the Hon'ble High Courts of Kerala and Karnataka, when there is no levy in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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