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2015 (10) TMI 367 - AT - Service TaxRefund / Rebate under Rule 5 of Export Service Rules, 2005 - Period of limitation - Activity of providing Telecommunication service to their customers/clients of Foreign Telecom Operator (FTO) - According to the Revenue, the Appellants rendered the Telecommunication services to the inland customers of FTO in India and therefore, such service cannot be treated as export of service. - Held that - appellant should be eligible for refund of the service tax paid on input services used in or in relation to rendering of the output service which has been exported The main thrust of the argument of the learned Advocate is that there is no limitation mentioned in the notification, and therefore, the limitation would not be applied for filing the rebate claim. The Tribunal after following various decisions of High Court, held that where the statute provides the period of limitation under Section 11B of the Act, 1944 for a claim for rebate, the provisions has to be complied with as a mandatory requirement of law. In view of that, we find that the decision of the Tribunal in the case of Vodafone Cellular Ltd 2014 (3) TMI 117 - CESTAT MUMBAI applicable in the present case. In view of the above discussion and following the decision of the Tribunal in the Appellant s own case, we allow all the appeal and the matter is remanded to the Adjudicating authority for verification as to whether the claims are time barred or not - We make it clear that the principle of unjust enrichment would not apply as held by the Tribunal in the Appellant s own case - Decided partly in favor of assessee.
Issues Involved:
1. Denial of rebate claims on merit. 2. Denial of rebate claims on limitation. Detailed Analysis: 1. Denial of Rebate Claims on Merit: The appellants, engaged in providing telecommunication services, filed rebate claims under Rule 5 of Export Service Rules, 2005 for Service Tax paid. The Revenue contended that the services rendered to inland customers of Foreign Telecom Operators (FTO) in India do not qualify as export of service. The Adjudicating authority rejected these rebate claims, and the Commissioner (Appeals) upheld this decision. The appellant's advocate argued that previous Tribunal decisions in similar cases (Vodafone Essar Cellular Ltd Vs CCE Pune-II and Vodafone Cellular Ltd Vs CCE Pune-III) supported the rebate claims. The advocate cited multiple precedents to bolster this argument. The Revenue's representative argued that the Tribunal's decisions in the Vodafone cases did not consider Supreme Court rulings and relevant definitions and circulars. He emphasized that the service was performed and consumed in India, thus not qualifying as an export. He distinguished the present case from the Paul Merchant Ltd case, arguing that the service recipient in the current case was in India, unlike in Paul Merchant Ltd. The Tribunal referred to its earlier decision in Vodafone Essar Cellular Ltd, which clarified that the service recipient is the foreign telecom service provider, not the subscriber roaming in India. The Tribunal held that the service rendered to the foreign telecom service provider, who is located outside India, constitutes an export of service. 2. Denial of Rebate Claims on Limitation: The appellant's advocate argued that Notification No.11/2005-ST does not specify any limitation period for rebate claims. However, the Revenue's representative contended that Section 11B of the Central Excise Act, 1944, which imposes a one-year limitation period for refund claims, applies to Service Tax refunds as well. The Tribunal, in the Vodafone Cellular Ltd case, upheld the one-year limitation period for refund claims, citing various High Court and Supreme Court decisions. It was determined that even if the notification does not specify a limitation period, a reasonable time limit must be inferred. Conclusion: The Tribunal allowed the appeals and remanded the matter to the Adjudicating authority to verify whether the claims were time-barred, following the decision in Vodafone Cellular Ltd. The principle of unjust enrichment was deemed not applicable. The Tribunal's decision emphasized the mandatory compliance with the limitation period under Section 11B of the Central Excise Act, 1944, for rebate claims.
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