TMI Blog2018 (1) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... ceiving the considerations from the appellant. The services are availed by the appellant, who is a foreign based entity. This is to be considered as export of service as held by the Tribunal in various cases. Unjust Enrichment - Held that: - The Tribunal in Wienerberger Brick Industries Pvt. Ltd. [2014 (1) TMI 1151 - CESTAT BANGALORE] held that with reference to refund claims relating to export of services the principle of unjust enrichment would not be applicable as provided in Section 11 B of the Central Excise Act, 1994. - unjust enrichment will not apply. Refund allowed - appeal allowed - decided in favor of appellant. - Service Tax Appeals Nos.56290-56293/2013 ( DB ) - Final Orders Nos.50326-50329/2018 - Dated:- 25-1-2018 - Shri S. K. Mohanty, Member ( Judicial ) And Shri B. Ravichandran, Member ( Technical ) Shri A. R. Madhav Rao/Ms.Nandita Narayan, Advocates for the appellants Shri Amresh Jain, AR for the respondent ORDER Per B. Ravichandran These four appeals are against common impugned order dated 31.10.2012 of Commissioner (Appeals), Central Excise, Delhi-I. These four appeals were with reference to rejection of refund of service tax cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and service tax has been correctly discharged on the same. The Original Authority held that the Department of Post has made payment to recipient in India on the basis of the instructions of the appellant. No portion of money transfer service has been performed outside India as claimed by the appellant and accordingly, the Original Authority concluded that the Department of Post provided services in India and there is no export of service. He further held that the Department of Post has passed on the service tax burden to the appellant. The appellant has not submitted any documentary evidence to prove that the service tax collected by the Department of Post and reimbursement by the appellant had not been passed on to any other person. Accordingly, the Original Authority held that the appellants are not eligible for refund both on merits as well as on the principle of unjust enrichment. On appeal, vide the impugned order, the Commissioner (Appeals) upheld the rejection of refund claims. He affirmed that the transactions are correctly subjected to service tax, there is no export of service. He observed that though rejection of refund under doctrine of unjust enrichment may not be nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llular Ltd. -2014 (34) STR 890 (Tribunal-Mumbai) (d) CST, Ahmedabad Vs. M/s.Mohanlal Services 2009 TIOL-2068-CESTAT-AHM (Page 315-317 of the Appeal) 9. Even otherwise, without prejudice to the above two submissions, the ld. Counsel further submitted that there is no unjust enrichment in the present case as per facts established by the appellant. The principal amount along with fees for transferring such amount is collected from the customers by the appellant in advance in the foreign country. The amount will be remitted to the recipient in India through any of the numerous agents of the appellant providing such service. The Department of Post is one such agent only. At the time of remitting the principal amount with the appellant in the foreign country, neither the customer nor the appellant would know that the amount will be delivered through Department of Post or any other similarly situated agents of the appellant. The overseas customers transfer the money to the beneficiaries and the considerations for the same is free from any possible tax in India. The rates are uniform and do not vary for remittance through Department of Post. The ld. Counsel submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td.- 2015 (37) STR 642 (T-M) has observed as below:- 5.1 There is no dispute about the certain basic facts involved in the appeal. The service recipient in the transaction is M/s. Western Union, who is situated abroad. There is also no dispute that consideration for the service rendered has been received in convertible foreign exchange. The only dispute is where the service has been rendered. At the relevant time, there were no specific rules to determine the place of provision of service in Service Tax law. However, with effect from 20-6-2012 a specific Rule has been prescribed called Place of Provision of Service Rules, 2012. Though these Rules are only prospective in nature, the provisions of these Rules can be gainfully used to understand the concept of place of provision. Rule 3 of the Rules says that the place of a provision of a service shall be the location of the recipient of the service. In the facts of the case before us, the service receiver is M/s. Western Union, who has paid the consideration for the service and who is situated outside India and therefore, the place of provision of service should be treated as falling outside India. 5.2 In an identical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just enrichment. We have held in favour of the appellant on merit, and necessarily have to also examine the doctrine of unjust enrichment in the present case. The lower authorities are bound to examine the statutory requirements of such principle before actually sanctioning the amount to the claimant. There is no infirmity in scrutiny. The correctness of the findings can be contested. 17. The appellant pleaded that the doctrine will not affect the present claims. Their argument is two fold. First, they have never passed on service tax liability paid by them to the Department of Post to any third party. Towards this effect, they have submitted certificate by Chartered Accountant and also by explaining the billing arrangement for such money transfer. Admittedly, the appellants have uniform rate schedule for transferring the money for the customer, who approached them outside India. The appellants do have multiple agents to arrange the remittance of such transfer money to the recipient in India. There is no element of tax or additional considerations, which was collected by the appellant from such customers in foreign country, which can be attributed to service tax. The Original Au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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