TaxTMI 
TaxTMI 
2019 (8) TMI 747
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....ng certain defects. The refund was, thereafter, re-submitted on 03.07.2017. Show-cause notice was issued to the appellants on three grounds:- Firstly, alleging that the refund claim is time-barred when computed from the date of re-submission, which is 03.07.2017; Secondly, that the appellants have not fulfilled the condition under Rule 6A of the Service Tax Rules, 1994 in regard to the export of services inasmuch as, the consideration for the services was not received in foreign currency; and Thirdly, that the refund claim is hit by the doctrine of Unjust Enrichment. After due process of law, the original authority rejected the refund claim, which was upheld by the Commissioner (Appeals). Hence this appeal. 2. On behalf of th....
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.... of Service Tax Rules, the learned counsel explained that the services were rendered outside India. The appellant had received the consideration by adjustment in their account in Indian currency. In fact, such payment ought to be considered as received in foreign currency since the remittances are adjusted in the accounts of service recipients and service provider being the group company. To support this argument, he relied upon the decision in the case of M/s. Mitsubishi Heavy Industries India Pvt. Ltd., Vs Central Excise, Delhi-II reported in 2017 (5) G.S.T.L. 321 (Tri.-Del.) and also in the case of M/s. Sun-Area Real Estate Pvt. Ltd., Vs Commissioner of Service Tax, Mumbai-I reported in 2015 (39) S.T.R.897 (Tri.-Mumbai). The third gro....
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....of limitation prescribed under section 11B is not applicable for the tax paid under mistake, the learned Authorised Representative submitted that if the tax is paid under mistake of law, the period of limitation under General Clause Act could be applicable. To support his argument, he relied upon the decision in the case of M/s. Mafatlal Industries Ltd. Vs Union of India reported in 1997 (89) E.L.T.247 (S.C.) as well as the decision in the case of Collector of Central Excise, Chandigarh Vs M/s. Daoba Co-operative Sugar Mills reported in 1988 (37) E.L.T.478 (S.C.). The learned Authorised Representative submitted that the appellant is taking a double stand by stating that the service tax is paid under mistake of law and that the refund cla....
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.... that the period of limitation prescribed in section 11B will not applicable for the service tax paid under mistake. In the present case, the appellants paid service tax on service which is not taxable as per the provisions of law. Thus, when the tax has been paid under a mistake the period of limitation prescribed under section 11B cannot be applied as held by the jurisdictional High Court in the case of M/s. 3E Infotech (supra). For these reasons, I hold that the rejection of refund claim on the ground of time bar is unjustified. 5.2 Second issue for rejection of refund claim is that the appellant has not fulfilled the conditions of receiving consideration in convertible foreign currency. The learned counsel explained that the group co....
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....roducer in India is assured of receiving the contracted amount; undeniably, a necessary factor in minimizing the risk of budgetary overrun. This justification is, unarguably, acceptable as logical. The respondent did produce a certificate from Hong Kong and Shanghai Banking Corporation Ltd., their bankers, indicating that inward remittance from the overseas entity was in convertible foreign currency. The original authority rendered its findings after acknowledging this certificate. In the light of this, it is surprising that Revenue has chosen to argue that the condition of inward remittance in Export of Services Rules, 2005 had not been fulfilled. Admittedly, the Indian Rupee is not a freely convertible currency 16. and b....