TaxTMI 
TaxTMI 
2014 (5) TMI 984
X X X X Extracts X X X X
X X X X Extracts X X X X
....tor to enable the subscribers of the said foreign telecom operator to avail international inbound roaming facility. Subsequently, Notification No.36/2007-ST was issued on 15/06/2007 under Section 11C of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. According to this Notification, as a practice, service tax was not being levied on such international roaming charges collected and wherever such taxes were not paid, the same shall not be collected. After the notification was issued, the appellants filed a refund claim for the service tax paid by them on 26/11/2007. The refund claim was rejected on the ground that according to the notification only service tax which was not collected or levied, need not be collected....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ereas, the Central Government is satisfied that a practice was generally prevalent regarding levy of service tax (including non-levy thereof), under section 66 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), on roaming service provided to an international in-bound roaming subscriber, by a telegraph authority, and that such services being a taxable service were liable to service tax under sub-clause (b) of clause (105) of section 65 of the Finance Act, which was not being levied according to the said practice during the period commencing from the 1st day of July, 1994 and ending with the 14th day of January, 2007; Now, therefore, in exercise of the powers conferred by section 11C of the Central Excise A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the said practice the duty was not, or is not being, levied, or (ii) to a higher amount of duty of excise than what was, or is being, levied, according to the said practice, then, the Central Government may, by notification in the Official Gazette, direct that the whole of the duty of excise payable on such goods, or as the case may be, the duty of excise in excess of that payable on such goods, but for the said practice, shall not be required to be paid in respect of the goods on which the duty of excise was not, or is not being, levied, or was, or is being, short-levied, in accordance with the said practice. (2) Where any notification under sub-section (1) in respect of any goods has been issued, the whole of the duty of excise p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... considering it exclusively based on the words used in the notification is not proper and therefore in terms of Section 11C(2) made applicable to service tax matters, the appellants are eligible for the refund. At this stage, I have to deal with the submissions of the learned AR who submitted that Section 11C (2) deals with goods and not services and therefore conclusion reached by me is not correct. Very fact that Section 11C is made applicable by making a specific provision in Section 83 would show that the provisions of Section 11C have to be read by reading 'service' in place of 'goods'. Section 83 of Finance Act 1994 makes it clear and therefore the same is reproduced below:- 83. Application of certain provisions of Act 1 of 1944. -....