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TMI Blog2019 (9) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... m abroad, stretching between the period 01.04.2005 to 17.04.2005. Tax of a sum of Rs. 22,79,812/- was remitted by the petitioner in the light of Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, extracted below: 'in relation to any taxable service provided by a person who is a non-resident or is from outside India, dose not have any office in India, the person receiving taxable service in India' 2.The virus of the aforesaid Rule was challenged by the Indian National Ship Owners Association, before the Bombay High Court. The main contention raised by the petitioner therein was two fold (i) that the imposition of service tax by way of a Rule without there being a corresponding statutory provision backing the same is impermissible an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the respondents had no authority to levy service tax upon recipients of services for non-resident Indians prior to 18.04.2006. 4.This decision was carried in appeal before the Supreme Court that confirmed the same on 14.12.2009. The law thus stood settled on 14.12.2009, to the effect that there could be no liability fastened upon a service recipient, who had received services from non-resident service providers, prior to introduction of Section 66(A). 5.The petitioner before me consequently sought refund of the tax paid by it in terms of Rule 2(i)(d)(iv) which claim was rejected on 13.07.2010 by the original authority. The order was reversed in first appeal by order dated 12.02.2013. In further appeal by the revenue, the Customs Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the period of limitation or, filed a writ petition to ventilate its grievance. 11.1.Concededly, the Appellant/Assessee, did neither and, instead, filed application under Section 11B of the Central Excise Act, 1944. 12.Thus, in our view, ultimately, the Tribunal came to the correct conclusion and therefore, no interference, is called for. 13.In view of our discussion above, Question No.(i) is answered in favour of the Revenue, for its conclusion, subject to caveat set forth above with regard to its observation that the levy could be construed without authority of law but not unconstitutional. 13.1.In so far as, Question No.(ii) is concerned, it is answered against the Assessee and in favour of the Revenue. 13.2.As regards, Que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944 and as such is not liable to be granted. 9.However, where the collection of the tax is itself without the authority of law, then the refund of tax collected thus, is also not bound by the rigour of that law. The provisions of Section 11 B and the rigour/procedure thereof would not be applicable or attracted to the present case. Admittedly, the petitioner has suo motu, complied with the provisions of Rule 2(i)(d)(iv) and having done so, the petitioner should not be expected to suffer on account of compliance. For these reasons, I am of the view that this writ petition should succeed and the amount of tax remitted be refunded to the petitioner within a period of four weeks from date of receipt of a copy of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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