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2017 (10) TMI 454

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..... 1997 (1) TMI 80 - SUPREME COURT OF INDIA], where it was held that even in the case of illegal levy, the limitation prescribed under Section 11B has to be followed and no extension can be granted - the claim filed by the appellant for the period April 2008 to January 2010 is fully time barred and claim for the period January 2010 to June 2012 filed on 26/11/2012 is partially time barred. Appeal allowed in part. - ST/89134 & 89893/13 - A/89939-89940/17/STB - Dated:- 26-9-2017 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri. Prasad Paranjape, Advocate for appellant Mrs. P. V. Shekhar, Asst. Comm. (AR) for respondent ORDER Per: Raju 1. These appeals have been filed by M/s.Sany Heavy Industry India Pvt. Ltd., against rejection of refund claims. In respect of appeal No.ST/89134/13 the impugned order, apart from the rejecting the refund claim, holds that the impugned services merit classification under Business Auxiliary Service. Against this order appeal have been filed by M/s.Sany Heavy Industry India Pvt. Ltd. Revenue has not challenged the order on classification. 2. Learned Counsel for the appellant argued that the appell .....

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..... ants have paid service tax under the head of maintenance and repair service and therefore, there is no case for export of BAS. For maintenance and repair service to become export of service must be performed either fully or partly outside India, and in this case no service was performed abroad. 2.4 In view of the above, it has been held that it does not amount to export of service. The matter was challenged before the Commissioner (Appeals) who held that the service provided by the appellant is properly classifiable under BAS. However, relying on Rule 3 (1) (iii) of the Export of Service Rules, the Commissioner (Appeals) held that the service provided by the appellants are to the Indian Customers of the Sany Overseas and not to Sany Overseas and thus they do not qualify the export of service. The Commissioner (Appeals) further held that part of the refund claim is barred by limitation. 2.5 The learned Counsel argued that the services provided by the appellants are BAS and the service recipient in this case is Sany Overseas and not the Indian Customers of Sany Overseas. For this assertion, he relied on the decision in the case of Paul Merchant Ltd. 2013 (29) STR 257. The learn .....

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..... ver differ on the classification of the service. The order-in-appeal dated 07/12/2013 held that the said services are classifiable under BAS whereas the order-in-appeal dated 30/09/2013 held that the service is classifiable as maintenance and repair service. However, both the orders held that the services provided did not amount to export of service. It is seen that the order dated 12/07/2013 was not produced before the Commissioner (Appeals) during the personal hearing held on 08/12/2013. 5. On the issue of limitation, it is seen that the refund claim for the period April 2008 to January 2010 was filed on 06/02/2013. If the limitation prescribes under Section 11B read with Section 83 of the Finance Act is applied the entire claim becomes barred by limitation. We find that the appellants have relied on the decision in the case of D Cawasji Co. (supra) Hexacom (I) Ltd. (supra), Indian Ispat Works Ltd. (supra), Motorola India (supra). However, the impugned order does not deal with it on the ground that the refund claim does not survive on merits. 6. It is seen that the Hon ble Apex Court in the case of Anam Electrical Manufacturing Co. - 1997 (90) ELT 260 (SC) has o .....

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..... es to the customers of Sany Overseas. The Management, Maintenance Repair Services are defined under Section 65 (64) as under: Management, Maintenance or Repair means any service provided by: i) Any person under a contract or an agreement; or ii) A manufacturer or any person authorized by him, in relation to a) Maintenance or repair including reconditioning restoration or servicing or any goods or equipment, excluding motor vehicle; or b) Maintenance or management of immovable property. 7.1 It can be seen from this definition that the services of only maintenance and repair of the machinery etc. is covered under Section 65 (64) of the Act. The appellants have entered into an agreement with Sany Overseas, not only for maintenance or repairs but for installation, training, demonstration, etc. as well. Thus the services are not covered under the category of Maintenance or Repair Services . 7.2 The appellants have claimed that the impugned services are appropriately covered under the category Business Auxiliary Services under Section 65 (19). For case reference the relevant portion is reproduced hereunder: 1(19) business auxiliary service .....

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..... rvice. 7.2 In view of the fact that the claim relating to period April 2008 to January 2010 filed on 06/02/2013 is totally barred by limitation. The Appeal No.ST/89893/13 is dismissed. 7.3 In so far as the appeal No.ST/89134/13 is concerned the impugned order classifies the said service under the category of BAS. This aspect has not been challenged by the Revenue. Thus, the classification of service stands finalized by the impugned order under BAS. 7.4 The appellants have relied on the decision of the Tribunal in the case of M/s.Paul Merchant Ltd. - 2012-TIOL-1877-CESTAT-DEL. The Tribunal in the said case has held that the recipient of service in such cases is the person who has requested the ser ice or the person who hired the appellants in this case. In the instant case the appellants were hired by Sany Hong Kong and Sany China, who are located outside India. The impugned order in para 8.1 holds that the service recipients are located in India and proceeds on that basis. Thus, the impugned order cannot be upheld as it proceeds on premises contrary to the decision of Tribunal in the case of Paul Merchant Ltd. (supra). Thus Appeal No.ST/89134/13 is allowed by way o .....

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