2017 (7) TMI 96

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....pellant received the service charges in convertible foreign exchange. However, the appellant paid the service tax at the applicable rates in respect of payment received in convertible foreign exchange for marketing Hong Kong company services in India. Against the said payment of service tax, the appellant filed refund claims for an amount of Rs. 9,49,98,466/- for the period February 2006 to March 2009. The adjudicating authority rejected the refund claim on the ground that the appellant has not followed the procedure laid down under the Export of Services Rules, 2005 and Notification No. 11/2005-ST dated 19.4.2005. The appellant has filed refund claim in Form-R whereas the same should have been filed in Form ASTR-1 with an intention to avoi....

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....dia) Pvt. Ltd. - 2015 (39) STR 700, held that such service is export of service. Therefore, on merit, the export of service cannot be disputed. He also placed reliance on the following decisions:- i) All India Federation of Tax Practitioners - 2007 (7) STR 625 (SC); ii) KSH International Pvt. Ltd. Vs. CCE - 2010 (18) STR 404; iii) EM Jay Engineers - 2010 (20) STR 821. 2.1 He further submits that due to technical or procedural breach, the refund cannot be denied as held in the judgment in the case of Universal Enterprises Vs. GOI - 1991 (55) ELT 137 (GOI) and Poulose Mathew Vs. CCE - 1989 (43) ELT 424 (Tri.). 2.3 As regards time bar aspect, he submits that the amount paid to the department is not service tax as in case of expo....

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....en considered. Therefore, those judgments are not good law. 3.1 As regards unjust enrichment, the learned AR submits that from the invoice it is apparent that the service tax paid by the appellant was charged in the invoice to their foreign service recipient. Therefore, for this reason also, the refund cannot be granted to the appellant. 4. We have carefully considered the submissions of both sides. 5. We find that, as regards the nature of transaction, it is prima facie export of service. The rejection of refund claim by both authorities is mainly on the ground that the appellant has not followed the procedure as provided under Rule 5 of the Export of Services Rules, 2005 and Notification No.11/2005-ST issued thereunder, inasmuch ....