2015 (5) TMI 702

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....that the respondent filed refund claim of service tax amounting to Rs. 21,57,796/ which was paid by the respondent on account of audit objection in respect of services payable on commission received from overseas person. The respondent provides marketing support services to their principal who is situated in the abroad and said overseas principal export their goods to independent customers in India. The respondent, for the said marketing support services, gets commission from the principal who is in abroad. The adjudicating authority rejected the refund claim on the ground that the services of marketing support is provided in India and consumed in India therefore the services are used in India hence the condition of export of services are n....

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....ng the appeal of the respondent has given very elaborate findings not only interpreting the provisions but also based on CBEC Circular No. 111/5/2009-ST dated 24/2/2009 dated and also relying on various judgments. The extract of the findings is reproduced below:- Undisputedly, the appellant has provided service to a foreign principal who is located outside India; in Netherlands, and the lower authority in the impugned order has clearly held that the service is provided for and on behalf of its foreign principal. Such services appeared to have been provided in India and there was thus no export of services. The CBEC Circular No. 111/8/2009-ST dated 24.2.2009 has clarified as under: "the relevant factor is the location of the services rece....

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....Bangalore - 2010 (2) S.T.R. 77 (Tri-Bang) relied upon by the appellant, the Tribunal has referred to the above Board Circular dated 24/2/2009 and has categorically held that in such cases, it will amount to export of service in terms of the Export of Service rules, 2005. The Hon'ble Tribunal in the case of Lenovo(India) Pvt. Ltd. reported at 2010 (20) S.T.R. 66 (Tri-Bang) held that: "Rebate-Export of Service-Rebate of Service tax on commission received under business Auxiliary Service-impugned order rejecting rebate on the ground that promotion of sale of produces undertaken in India and exemption under Export of Services Rules, 2005 not applicable 0 services provided to person outside India on receipt of sales commission-services of ....

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.... CBEC Circular dated 24/2/2009 refereed to above, it is not open to the revenue authorities to act contrary to such clarification as the law is already settled on this issue. I find that the Asst. Commissioner has not dealt with the issue of unjust enrichments in his order, though this issue was raised in the notice issued to the appellant. The Hon'ble Tribunal in the case of S. Mohanlal Services 2010 (18) S.T.R. 173 (Tri-Ahmd) held that: Refund-Unjust Enrichment Export of services-provisions relating to Unjust Enrichment not applicable in respect of export of service- Section 11B of Central Excise Act, 1944 as applicable to service tax vide Section 83 of Finance Act,1944 (para 5) Refund-Unjust Enrichment-Refund has as admissible in ....