TMI Blog2019 (7) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... case of CONVERGYS INDIA SERVICES (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX, NEW DELHI [ 2011 (9) TMI 473 - CESTAT, NEW DELHI] where it was held that the unjust enrichment is not applicable to cases involving export of services as per the proviso to Section 11B(2). Scope of SCN - HELD THAT:- Commissioner(Appeals) has also travelled beyond the show-cause notice because in the show-cause notice, the principle of unjust enrichment was not invoked. Appeal allowed - decided in favor of appellant. - ST/20566-20567, 20643, 20644/2016, ST/20592 to 20594; 20733 to 20739/2016 - Final Order No. 20583-20596/2019 - Dated:- 26-7-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri Harishbindumadhavan, Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,50,06,586 ST/20644/2016 October 2010 to March 2011 1,31,07,072 ST/20592/2016 April 2008 to June 2008 34,62,794 ST/20593/2016 October 2008 to March 2009 99,47,914 ST/20594/2016 April 2009 to June 2009 48,04,278 ST/20733/2016 January 2008 to March 2008 63,77,793 ST/20734/2016 July 2008 to September 2008 77,68,494 ST/20735/2016 July 2009 to September 2009 1,92,92,014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed refund under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No.5/2006-CE dt. 14/03/2006. The original authority rejected the refund claim. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) who remanded the case to the lower adjudicating authority for de novo consideration. The Commissioner(Appeals) also directed the adjudicating authority to examine the applicability of the principles of unjust enrichment in the present case. Appellants are aggrieved with this finding of the Commissioner(Appeals) and in the present appeals they have challenged only this finding of the Commissioner(Appeals). 3. Heard both sides and perused records. 4.1. Learned counsel for the appellant submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ergys India Services Pvt. Ltd. Vs. CST, New Delhi [2011- TIOL-1902-CESTAT-DEL] 5. On the other hand, the learned AR defended the impugned order. 6. After considering the submissions of both the parties and perusal of the material on record, we find that this Tribunal in the case of XL Health Corporation India Pvt. Ltd. has held as under:- 6. After considering the submissions of both 6. the parties and perusal of the records, I find that the learned Commissioner (A) has wrongly invoked the doctrine of unjust enrichment in the present case. I also find that unjust enrichment principle is not applicable and has been specifically excluded by the proviso to Section 11B providing claim of refund. Further, I also find that in the variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .)] iv. Sair Creation Vs. CCE [2013(294) ELT 637 (Tri. Mum.)] v. Balakrishna Textiles Pvt. Ltd. Vs. CCE [2009(239) ELT 279 (Tri. Ahmd.)] vi. Indo-Nippon Chemicals Co. Ltd. Vs. UOI [2005(185) ELT 19 (Guj.)] 7. The ratios of the decisions cited supra clearly brings out that the unjust enrichment is not applicable to cases involving export of services as per the proviso to Section 11B(2) and the finding of the Commissioner(Appeals) to that extent is bad in law. Further we also find that Commissioner(Appeals) has also travelled beyond the show-cause notice because in the show-cause notice, the principle of unjust enrichment was not invoked. In view of our discussion above, we are of the considered opinion that the impugned order inv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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