Refund on export of services cannot be denied merely for imperfect framing when foreign exchange receipt is proved.

Refund of service tax on exported services was upheld where the record showed that services were rendered to a foreign recipient and consideration was received in convertible foreign exchange. The tribunal treated the claim as substantively one for export services, and held that refund could not be denied merely because the application was not initially framed in those terms or because exemption under another notification was also mentioned. The finding that the export claim was an afterthought was unsustainable. The denial of refund was set aside, as the export nature of the services and the absence of any established unjust enrichment supported the assessee's entitlement.

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Issues: Whether the assessee was entitled to refund of service tax paid on services exported to a foreign recipient and remitted in convertible foreign currency, and whether the refund could be denied on the ground that the claim was not originally presented as one for export of services.

Analysis: The refund application and accompanying documents, including export invoices, FIRCs and the Chartered Accountant's certificate, established that the services were provided to a foreign entity and consideration was received in convertible foreign exchange. On these admitted facts, the services fell within the export of services regime, and the refund claim was substantively one for tax paid on export services. The fact that the lower authority had also referred to exemption under Notification No. 13/2003 dated 20/6/2003 did not defeat the assessee's entitlement to refund where the export nature of the services and receipt of foreign exchange stood proved. The finding that the export claim was an afterthought was therefore unsustainable.

Conclusion: The assessee was entitled to refund of the service tax, and the denial of refund was not sustainable.

Final Conclusion: The order denying refund was set aside and the assessee's claim was upheld on the basis that the services constituted export of services and the tax incidence had not been shown to have been passed on.

Ratio Decidendi: Where the record shows that taxable services were exported to a foreign recipient and payment was received in convertible foreign exchange, refund cannot be denied merely because the claim was not artfully framed at the initial stage or because an exemption notification was also adverted to in the adjudication process.

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