TMI Blog2017 (5) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... T/20599/2016-SM, ST/20600/2016-SM, ST/20601/2016-SM, ST/20602/2016-SM - - - Dated:- 23-3-2017 - Shri S. S. Garg, Judicial Member S/Shri Tarun gulati Vinayak Mathur, Advocate For the appellant Shri Pakshi Rajan, AR For the respondent ORDER Per : S. S. Garg Appellants have filed six appeals against the common impugned order dated 1.2.2016 passed by the Commissioner (A) disposing of six appeals against the Orders-in-Original passed by the Deputy / Assistant Commissioner of Service Tax, Bangalore. The issue involved in all these six appeals is identical and therefore, all the appeals are being disposed of by this common order. The details of six appeals are given herein below: Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in toto by the Order-in-Original mainly on the following ground. i. Non-submission of statutory declaration and other statutory documents relating to the refund applications in terms of CBEC Circular No.120/1/2010 dated 19.1.2010; ii. FIRCs not mentioning export invoice reference and other details, thus lacking any correlation with the Foreign Inward Remittance Certificates (FIRC); iii. Non-submission of documentation SOFTEX declaration, 100% EOU certificate issued by CSEZ, ST-3 returns extracts, software development and service agreement. iv. Erroneous claim of refund, which had already been claimed earlier; v. Non fulfillment of conditions pertaining to Rule 3(2) of Export Rules; vi. Lack of documentary e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the learned Commissioner (A) has rejected the refund claim on the ground that the appellant did not cross the bar of unjust enrichment. Learned counsel for the appellant submitted that the bar of unjust enrichment is not applicable in the present case as the same has been specifically excluded in the proviso to Section 11B of the Central Excise Act, 1944. The learned counsel took me through the provisions of Section 11B. For reference purpose, the Section 11B is reproduced herein below: Section 11B. Claim for refund of duty and interest, if any, paid on such duty - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermined shall be credited to the Fund : Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; b) unspent advance deposits lying in balance in the applicant's account current maintained with the Principal Commissioner of Central Excise or Commissioner of Central Excise; c) refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the following decisions: i. Convergys India Services Pvt. Ltd. vs. CST, Delhi: 2012 (25) STR 251 (Tri.-Del.) ii. CST, Mumbai vs. Vodafone (India) Pvt. Ltd.: 2015 (40) STR 699 (Tri.-Mum.) iii. CST, Mumbai vs. Pulcra Chemicals (India) Pvt. Ltd.: 2015 (39) STR 70 (Tri.-Mum.) iv. Sair Creation vs. CCE: 2013 (294) ELT 637 (Tri.-Mum.) v. Balakrishna Textiles Pvt. Ltd. vs. CCE: 2009 (239) ELT 279 (Tri.-Ahmed.) vi. Indo-Nippon Chemicals Co. Ltd. vs. Union of India: 2005 (185) ELT 19 (Guj.-HC) The ratios of the decisions cited supra clearly brings out that the unjust enrichment is not applicable to cases involving export of service as per Section proviso to Section 11B(2) and the finding of the Commissioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, I also find that the impugned order has clearly travelled beyond the show-cause notice and the Order-in-Original and the appellant has been put into a worse off situation than originally he was because of the Order-in-Appeal. 6.1 Following the ratios of the decisions cited supra, I am of the view that the impugned order is not sustainable in law and I set aside the impugned order and remand the case back to the original authority to decide the refund afresh keeping in view the various decisions cited by the appellant and keeping in view the documents which the appellant has produced and may like to produce before the original authority in support of all their claims. Therefore, all the appeals are allowed by way remand to the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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