TMI Blog2018 (4) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... against Revenue. - ST/89502/2013 - 85627/2018 - Dated:- 12-3-2018 - Shri M.V. Ravindran, Member (Judicial) Shri Atul Sharma, Assistant Commissioner (AR) for appellant Shri B Gaikwad, Advocate for respondent This appeal is filed by Revenue against Order-in-Appeal No: PUN-EXCUS-002-APP-081-13-14 dated 29/08/2013 passed by the Commissioner of Central Excise (Appeals), Pune -II. 2. Heard both the sides and perused the records. 3. After hearing both sides and filtering out unnecessary details, the brief facts of the case are that respondent herein, is an exporter of goods, exported consignments on which they paid commission to a person located outside India, discharged service tax liability under reverse charge me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons and in the case in hand, the hurdle of unjust enrichment had not been passed. For such proposition, reliance is placed on the judgment of the Supreme Court in the case of Sahakari Khand Udyog Ltd v. Commissioner of Central Excise Customs [2005 (181) E.L.T 328 (SC)] and judgement of Hon'ble Bombay High Court in the Weston Coalfields Ltd v. CESTAT [2013 (288) E.L.T. 203 (Bom.)] . 7. Learned Counsel reiterates the findings of the lower authorities, 8. On a careful considerations of the submissions made by both the sides, I find that the facts are not in dispute and it is admitted by both the lower authorities that the respondent-exporter need not have discharged the service tax liability on the commission paid by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the conditions of the Notification dated 07.07.2009, the benefit of the exemption is not available to the Appellants. Thus the Adjudicating authority has held that the service tax paid in this respect cannot be considered as wrongly paid, and therefore the service tax amount is not eligible for refund. In the instant case there is no dispute about the export of goods and also there is no dispute regarding the payment of service tax by the Appellants under the reverse charge mechanism. When these statutory elements are not disputed then denying the benefit of an exemption notification claim only on the basis of a procedural lapse is unjust. In this context I find strength in the argument of the Appellants that when the substantive/mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble CESTAT in the case of Commissioner vs S. Mohanlal Services - 2010(18) S.T.R. 149 (Tri Ahmd). On this ground also, the Appellants are eligible for the refund. Therefore, I do not agree with the Adjudicating Authority's stand that the refund claim is hit by the bar of unjust enrichment.' 9. I also find that the Hon'ble High Court of Gujarat in a similar situation in the case of Commissioner of Central Excise Customs, Swat -1 V. ABG Shipyard Ltd [2013 ( 31) S.T.R. 11 (Guj.)] had clearly ruled that non declaration of the commission amount on the shipping bill is a procedural lapse, when the amount of commission paid is not disputed and the service tax liability on that is also discharged. 10. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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