AI Drafter 
TaxTMI 
TaxTMI 
2019 (9) TMI 1391
X X X X Extracts X X X X
X X X X Extracts X X X X
....vices. On 4th January, 2007 the appellant filed a refund claim for Rs. 6,89,015/- under Rule 5 of Export of Services Rules, 2005 for the period July, 2005 to November, 2006 on the ground of fulfilment of the conditions of Rule-3 of Export Services Rules, 2005 i.e. of exporting taxable service and receiving payment in foreign currency, in view of notification No.11/2005 dated 19.04.2005. However, department vide show-cause notice No. 5728 dated 10.04.2008 has observed that the party has paid the service tax amounting to Rs. 1,72,125/- during the period from 13th August, 2005 to 5th December, 2005. The application for seeking refund is of 4th January, 2007, hence, this amount is beyond the requisite period of one year from the date of paym....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jection of refund for the remaining period, the ground of rejection that the services rendered by Appellant do not amount to export of service is objected. It is submitted that the issue of providing services for sale of products even in India but if provided to a company outside India amounts to export of service as has been held by Tribunal in the case of Microsoft Corporation India Pvt. Ltd. Vs. CCE, New Delhi reported (36) STR 766 in 2014. It is impressed upon that the Commissioner (Appeals) has committed an error while considering the admission of department's appeal against the said order by Supreme Court as a ground to reject the contention of the appellant. The order is, accordingly, prayed to be set aside appeal is prayed to be all....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd is for the period w.e.f. July, 2005 to November, 2005 which comes to Rs. 1,72,125/-. It is observed that while adjudicating the said show-cause notice the original adjudicating authority has in addition to rejecting the claim of Rs. 1,72,125/- has rejected the entire claim not only Rs. 6,89,015/- for the remaining period from December, 2005 to November, 2006, it has also rejected the claim of Rs. 2,17,081/- for the period December, 2006 to February, 2007 as was not even file on 4th January, 2007 but on 18th December, 2007. 6. This observation is sufficient for me to hold that the adjudicating authority has committed an error while holding the entire amount of claim i.e. Rs. 6,89,015/- as filed beyond one year. Apparently, the claim fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion Act. The Limitation Act is a central/general Act, whereas the Central Excise & Finance Act are special Acts. It is former as will be applicable had the special Act been silent about any period of limitation. For the application as the one in question, since it is maintainable under Section 11-B of Central Excise Act, irrespective out of the benefit flowing from the notification No. 11/2005 dated 19.04.200, the period of one year from the relevant date shall be applicable to claim the refund of the tax paid qua export of service. 9. In the present case apparently and admittedly, the application to claim refund was filed on 4th January, 200, the relevant date. Hence, the claim w.e.f January, 2006 cannot be held to be barred by time. Ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eyond the scope of show cause notice. The para-2 of the show cause notice as quoted in previous para of this order is again relied upon for the purpose. It becomes clear that demand of Rs. 2,17,081/- is absolutely beyond the scope of SCN, hence the confirmation is also not sustainable & is liable to be set aside. 11. Finally coming to the issue that the services herein actually amounts to export of service or not : I find that even the original adjudicating authority, after considering the invoices tendered by the appellant in respect of the services and agreements/contracts entered into by them with the foreign clients, has itself concluded that the services as provided by the appellants are the taxable services for the purposes Rule....