TaxTMI 
TaxTMI 
2017 (10) TMI 454
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....claimed that they have paid the service tax wrongly as the service provided by them amounted to export of service and no service tax is leviable thereon. Learned Counsel pointed out that the appellants are engaged in providing services to Sany Heavy Industries Co. Ltd. located in China and Sany International Development Ltd. located in Hong Kong (jointly referred as Sany Overseas). The appellants are engaged in providing various services in the nature of after sales advisory service support at site in respect of equipment sold by Sany Overseas and in respect of which Sany Overseas is contractually obliged to provide such services to Indian Customers. 2.1 A show-cause notice was issued to the appellants on 01/05/2013 in respect of refund claim pertaining to April 2008 to January 2010 filed on 06/02/2013. The said notice sought to deny the refund claim on the ground that the same is barred by limitation prescribed under Section 11B of the Central Excise Act, 1944 made applicable to the Finance Act vide Section 83 of the Finance Act. 2.2 The second ground for seeking rejection of refund claim was that the invoices issued in this case did not show the service tax particulars. The....
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....e is no statutory time limit for claiming refund when is tax paid inadvertently under a mistake of law. He argued that they were under the impression that the activity is taxable in India and no benefit of export of service can be granted towards rendering of such service. He argued that Section 11B of the Central Excise Act read with Section 83 of the Finance Act cannot be applied to any amount paid by the company which was not taxed or was not actually liable for tax. He relied on the decision of D Cawasji & Co. - 1978 (2) ELT (J154), Hexacom (I) Ltd. - 2003 (156) ELT 357 (Tri-Del), Indian Ispat Works Ltd. - 2006 (3) STR 161 (Tri-Del), Motorola India - 2006 (206) ELT 90 (Kar). 3. Learned AR relies on the impugned order. 4. We have gone through the rival submission. We find that the appellants are engaged in providing maintenance and repairs to the customers of Sany Overseas. Sany Overseas has engaged the appellants for providing maintenance and repair services to its customers located in India on its behalf. The appellants during the period April 2008 to June 2012 paid service tax under the head of maintenance and repair service. However, later on claimed refund of service ....
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....e Act/Customs Act in that behalf, such petition must be held to be untenable in law. Even if in any appeal, suit or writ petition, direction has been given that the refund application shall be considered with reference to the period of limitation prescribed in the Central Excise Act/Customs Act - or that the period of limitation shall be taken as three years - such a direction of the Appellant Court/Civil Court/High Court shall be deemed to be unsustainable in law and such direction shall be set aside. The period prescribed by the Central Excise Act/Customs Act for filing a refund application in the case of illegal levy cannot be extended by any Authority or Court. It is seen that the Hon'ble Apex Court has held that even in the case of illegal levy, the limitation prescribed under Section 11B has to be followed and no extension can be granted. In view of the above, we find that the claim filed by the appellant for the period April 2008 to January 2010 is fully time barred and claim for the period January 2010 to June 2012 filed on 26/11/2012 is partially time barred. The decision relied upon by the appellants in respect of their claim on limitation have been passed without cons....
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....and remittances, evaluation of prospective customer and public relation services. [Explanation.- For the removal of doubts, it is hereby declared that for the purposes of this clause, information technology means any service in relation to designing, developing or maintaining of computer software, or computerized data processing or system networking, or any other service primarily in relation to operation of computer systems". 7.3 I find that the services provided by the appellants is more in the nature of customer care services and merit classification under Business Auxiliary Services as claimed by the appellants." In para 7.1 it has been stated that the service provided by the appellant includes "installation, training, demonstration, etc". and therefore, it is not merely Maintenance and repair and therefore, it is excluded from the definition of the service of "Management, maintenance and repair". The said observation ignores that the definition of service under Section 65 (64) includes in its ambit not only "Management, maintenance and repair" but also all services provided in relation to such service. It is apparent that the services offered in nature of "installatio....