Tribunal allows appeal, refund claim not time-barred. Limitation period waived for tax paid under mistake.

The tribunal allowed the appeal, setting aside the order that rejected the refund claim as time-barred. It held that the limitation period does not apply when tax is paid under a mistake. The tribunal also found that the conditions under Rule 6A were fulfilled, considering the payment in Indian currency originating from a foreign group company as paid in convertible foreign currency. Additionally, it ruled that the doctrine of unjust enrichment does not apply to exported services where the service tax element was not collected from the recipient. The appellant was granted relief with any consequential measures.

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Issues:
1. Refund claim time-barred
2. Non-fulfillment of Rule 6A conditions
3. Unjust enrichment doctrine applicability

Analysis:

Issue 1: Refund claim time-barred
The appellant argued that the date of resubmission cannot be considered for calculating the limitation period, citing the decision in M/s.United Phosphorus Ltd. vs Union of India. Additionally, it was contended that since the service tax was paid under a mistake, the limitation under section 11B does not apply, referencing the case of M/s. 3E Infotech vs CESTAT, Chennai. The tribunal agreed, stating that when tax is paid under a mistake, the limitation period does not apply, as held by the jurisdictional High Court. Therefore, the rejection of the refund claim on the grounds of being time-barred was deemed unjustified.

Issue 2: Non-fulfillment of Rule 6A conditions
Regarding the condition of receiving consideration in convertible foreign currency, the appellant clarified that the payment, though remitted in Indian currency, originated from a group company in France, satisfying the requirement. Citing precedents like M/s. Mitsubishi Heavy Industries India Pvt. Ltd., the tribunal held that when the payment is adjusted and remitted through Indian banks, it should be considered as paid in convertible foreign currency. Consequently, the condition under Rule 6A was deemed fulfilled, and the services were considered exported in favor of the appellant.

Issue 3: Unjust enrichment doctrine applicability
The appellant argued that since the services were exported, the doctrine of unjust enrichment does not apply. It was further contended that the service tax element was not collected from the service recipient, as evidenced by bank statements. The tribunal concurred, stating that taxes cannot be exported, and thus, the doctrine of unjust enrichment does not apply to exported services. As the element of service tax was not collected from the service recipient, the issue of unjust enrichment was also decided in favor of the appellant.

In conclusion, the tribunal set aside the impugned order, allowing the appeal with any consequential relief.

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