TaxTMI 
TaxTMI 
2023 (6) TMI 499
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....ing Services Ltd. consequent to the novation agreement entered with M/s Essar Engineering Services Limited. (EESL) M/s Essar Steel Minnesota LLC, UAE (ESML) and M/s Essar Projects (India) Ltd. (EPIL). The appellant in para 1 (g) of refund claim and in their letter dated 21.02.2012 clarified that the payment for the services would be received in foreign exchanges by M/s Essar Projects (India) Ltd. (EPIL) at a future time. Since payment for said services has not been received in convertible foreign exchange as stipulated in Rule 3(2)(b) of Export of Services Rules, 2005, condition required to be fulfilled for treating as export of services had not been fulfilled. On this ground Assistant Commissioner, Service tax vide order issued in the form of letter dated 30.04.2012 directed the appellant to file the refund claim duly completed in all respects. Being aggrieved, Appellant filed the Appeal before the Commissioner (Appeals), who vide impugned Order-In-Appeal No. CCEA -SRT-I/SSP/247/2013-14/U/S/35A-(Final Order) dated 18.07.2013 rejected the appeal of appellant on the ground that Assistant Commissioner's communication dated 30.04.2012 was only interim and administrative communication ....
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....d. Vs. Comm. Of ST, Delhi [2014(35)STR 817 (Tri. Del.) affirmed by the Hon'ble Supreme Court at [2015(39)STR J308(SC)] (vii) SGK Consultations Pvt. Ltd. Vs. Comm. Of ST, Delhi [2016(44)STR 690 (Tri. Del.) 5. He further submits that the Ld. Commissioner (Appeals) has grossly erred in not dealing with the plea that there is no provision in law by which a refund claim can be returned back as being premature. The courts have held in number of cases that a refund claim filed by an assessee cannot be returned back by the refund sanctioning authority and the claim needs to be decided by the department, whether in favour or against the asseseee. He Placed reliance on the following decisions. (i) Usha International Vs. Comm. Of Customs (I), Mumbai [2017(357)ELT 532 (Tri. -Mum) (ii) Persistent Systems Ltd. Vs. Comm. Of CE & ST, Pune -III [2016 (43) STR 117 (Tri. -Mum.) 6. He also submits that return of claim with a direction to file it duly complete in all aspects, i.e. after receipts of payment in foreign currency, would result in the claim becoming time-barred as the claim had to be filed within one year of the erroneous payment. 7. Shri G. Kirupanandan,....
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....application can either be rejected or allowed in part or in full. The provisions of refund do not give liberty to the fund sanctioning authority to return the refund application by terming the same to be premature. Therefore the action of the Asstt. Commissioner in holding the application as premature is really an act of refusal to exercise a statutory duty to decide upon the refund application one way or the other. For this reason also, the order of the lower authority is untenable. 11. We find that every issue raised before the Tribunal is required to be dealt with, especially when the appellant argued the matter with documentary evidences on disputed refund claim, and therefore issue cannot be left open as it is obligatory on the part of the Tribunal, which is the last fact finding authority to deal with the said aspect. Accordingly, we proceed to decide the said plea of the assessee on the issue that whether refund claim is admissible or not in this matter to appellant. 12. We have gone through the refund application filed by the Appellant before the Assistant Commissioner. In para 1 (f) Appellant raised the ground for refund as under: - "(f) That service tax was....
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....hus clearly, there is serious violation of principles of natural justice apparent on the fact of record. 14. We find that if the tax itself is not leviable, it would be immaterial whether the payment for the services is received in Indian Currency or foreign currency. When the services in question were not taxable at all, as they were consumed outside India, the refund claim could not have been returned as premature on the ground that payment for the services were to be received in foreign exchange by M/s EPIL on a future date. Therefore the impugned order-in-appeal passed by the Ld. Commissioner in the present matter legally not correct. 15. We find strong force in appellant's claim on service being outside the taxable territory of India. Admittedly the disputed transaction related to services happened outside India. The service in respect of such transaction is rendered, received and consumed outside India. The Tribunal's decision in Cox & Kings India Ltd.- 2014 (35) S.T.R. 817. (supra) is applicable to the present case. The essence of taxability of service is that it should be taxed in the jurisdiction of its consumption and where is provided. Here, the service, namely "co....