2015 (10) TMI 1738

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....granted the refund of the amount without considering the provisions in correct perspective. 4. The respondent had received an amount as commission for orders to procure and products sold by principal located outside, in India. Respondent discharged the service tax liability on the said commission received by them. Subsequently noting that service tax liability does not arise on such a transaction, refund claim was filed which was rejected by the adjudicating authority after following the due process of law, on an appeal the first appellate authority has held in the favor of assessee and hence, Revenue is challenging the said order. 5. Learned departmental representative would submit that the service tax which is rendered by the appell....

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....aphs are: "6. The adjudicating authority has held that the service tax had been correctly paid by the appellants and that the fact of export of services had not been established. The appellants are indenting agents and market the products of the company outside India for which they get the commission. The foreign clients pay the commission proportionate to the orders procured and the Products sold by their foreign principals. Such service of marketing the products for foreign principals for consideration i.e. commission is the service classifiable under the category of Business Auxiliary Service. The issue regarding whether such services which are Tendered within India for their principals outside India and which results i....

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.... exchange. Non declaration of the fact of export in their ST3 returns cannot deprive the appellants of their rightful claims. Similarly the submission of refund claim in form 'R' instead of ASTR is only a procedural mistake and cannot result in denial of their claim of rebate. There are no other conditions under Notification No. 11/2005. The findings of the adjudicating authority therefore that the procedure laid down under this Notification had not been fulfilled cannot be sustained. 8. The adjudicating authority has then gone on to hold that the claim was barred by limitation in terms of Section 11B as also by doctrine of unjust enrichment. Since the rebate is being granted in terms of the Export of Services Rules, 2005 a....

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.... an identical issue is now settled by the Tribunal in the case of HINCON Technoconsult Ltd. (supra). I reproduce the relevant paragraphs. 4. Being aggrieved, the Revenue have filed the present appeal before this Tribunal on the ground that by virtue of Section 83 of the Finance Act, 1994, the provisions of Section 11B of the Central Excise Act are applicable to Service Tax which provides for filing of refund claim within one year from the relevant date. Further, by virtue of explanation to Section 11B, refund includes rebate. It is further urged that the provisions of Section 11B override the provisions of Notification No. 11/2005-ST and reliance was placed on the ruling of this Tribunal in the case of Precision Controls Vs. Commissioner....