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TMI Blog2011 (6) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Service Tax category of goods transport agency and business auxiliary service. 3. The unit was subjected to audit by the department and they were directed to pay service tax on the export commission (received from commission agent based outside India) taxable service under Business Auxiliary Service. They were directed to deposit the service tax and claim the refund thereon after payment of service tax. Accordingly, the appellant paid service tax of Rs. 2,78,853/-along with interest of Rs. 70,081/- vide GAR-7 dated 07/05/2009. Thereafter the appellant filed the refund claim. The claim was rejected on the aspect of limitation of time as well as non-fulfilment of conditions of the Notification No.41/07-ST, dated 06/10/2007. The Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar facts and circumstances, the assesse's appeal was allowed. 6. I have considered the submission and perused the records. 7. (i) Ld. Commissioner (Appeals) in the case found that: "I have carefully gone through the records of this appeal, the written submissions made in their appeal memorandum and during the course of personal hearing. It is seen that this appeal is arising out of the O.I.O passed by the respondent denying the refund claim filed by the appellants on account of service tax paid on the commission paid on export consignments during the period April 2006 to December 2007 under protest vide GAR 7 dated 07/05/2009. Considering the refund claim as filed under Notification No.41/2007-ST, dated 06/10/2007 the respondent had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh belatedly. Neither there is double payment of the service tax nor there is any exemption available during the period, therefore there is no question of eligibility for any refund". (ii) I find that the show-cause notice was issued on the ground that the refund claim filed is time barred and the appellant did not fulfil the condition of notification No.41/07 and on this basis only the lower adjudicating authority has rejected the refund claim. So far as later aspect is concerned, Ld. Commissioner (Appeals), has himself found that the ground of condition of Notification No.41/07 has not been fulfilled, is not correct. This was not challenged by the department at any state. So far as the issue of limitation of time is concerned from the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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