TaxTMI 
TaxTMI 
2018 (7) TMI 1796
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.... 30.09.2013 has been upheld, rejecting all the six Refund Claims being barred by time, and also being barred by the doctrine of unjust enrichment. 2. The facts relevant for the purpose are that the appellant is engaged in the business of providing telecom services as that of International Inbound Roaming (IIR) services to Foreign Telecom Operators (FTOs) having their fixed place of business located outside India. As per the contract, with these FTOs. the appellant has to provide telecommunication services to subscribers of these FTOs even when they travel beyond their home jurisdiction, i.e., a service known as the roaming facility. The appellant in its normal course of business is providing IIR service of three different kinds to these ....
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.... which they are entitled to claim rebates. It is impressed upon that the principles of unjust enrichment which is made the ground for rejection of four of the Refund Claims, are not applicable to International Inbound Roaming Service as the same qualify as exports under Export of Services Rules, 2005. The learned Counsel has relied upon the judgments in the cases of CST, Mumbai vs. Vodafone India Ltd 2004-TIOL-2479-CESTAT-MUM, Vodafone Essar Cellular Ltd vs. CCE, Pune 2013 (31) STR 738 (Tri.-Mum.), Vodafone Cellular Ltd vs. CCE, Pune 2014 (34) STR 890 (Tri.-Mum.), CST-VII vs. Flemingo Duty Free Shop Pvt Ltd 2018 (8) GSTL 181 (Tri.-Mum.) to impress upon: (i) Claim is with respect to Service Tax paid on output services which were exported;....
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....d under the Notification of 19.05.2005, the period of one year is the time limit prescribed for filing the Refund Claims. Since two of the six Refund Claims have been filed beyond the period of one year, those have rightly been rejected by the Commissioner (Appeals). The order is impressed upon to have no infirmity. The appeal is prayed to be rejected. 7. After hearing both the counsels, our considered opinion is as follows: 8. From the facts on record, it is apparent that the appellant is providing telecom services in India to international inbound roamers registered with foreign telecom network operators, but located in India at the time when the said services were being provided. The moot question for adjudicating the plea of unjus....
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....r and not the place of performance. In this context, the phrase "used outside India" is to be interpreted to mean that the benefit of service accrues outside India. Thus, for Category 3 services, it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India. 9. When the appellant is providing telecom services to the customer of a foreign telecom service provider while he is in India using the appellant's telecom network, there is no contract or agreement between the appellant and the said subscriber. The agreement is with the FTO situated outside and the subscriber is the customer/service recipient of the said FTO who is the cu....
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....y time as well, we adjudicate as follows: 11. The moot question to be considered for the purpose is as to whether the time limit prescribed under Section 11B of the Central Excise Act, 1994 is applicable to the rebate claims Notification No. 11/2005-ST dated 19.05.2005 only shall be applicable. The appellant herein had filed the rebate claim in terms of the aforesaid Notification of 19.05.2005 issued under Rule 5 of Export Service Rules, 2005. The period covered for the rebate was April 2007 to March 2008 and April 2008 to March 2009 and both the applications for refund were filed on 30.11.2010. The adjudicating authorities below have held that since rebate application is filed after one year from the payment of Service Tax, the claim is....