9911796707
TMI Blog2014 (12) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... its services during the period June, 2005 to March, 2006. Pursuant to raising of the invoices and or realization of the payments from the consumer of the services, rendered outside India, the respondent deposited Service Tax and thereafter applied for refund on 20.3.2007 for an amount of Rs. 1,31,538/- under the provisions of Rule 4 read with Rule 5 of the Export of Service Rules, 2005 read with Notification No. 11/2005-ST dated 19.4.2005. The claim of refund was rejected mainly on the ground that it is time barred in terms of Section 11B of the Central Excise Act which applies to refund of Service Tax also under Section 83 of the Finance Act, 1994. It was also observed in the adjudication order that from perusal of the balance-sheet and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to refund of the Service Tax paid thereon in terms of Notification No. 11/2005 dated 19.04.2005. Merely because the appellant have not filed refund claim in the prescribed proforma cannot disqualify them from the rightful refund which is due to them. If at all the adjudicating authority desired the submission of the claim in prescribed proforma all he had to do was to get a revised refund claim from the appellants. Not having done so it was the duty of the adjudicating authority to verify the claim on the basis of the documents produced by the appellants. As long as the conditions laid down in Notification No. 11/2005 i.e. (i) that the taxable services had been exported and payment had been received in convertible foreign exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise, Chennai - 2004 (176) ELT 147 (Tri-Chennai), where in case of rebate claim under Rule 12 of Central Excise Rules, 1944 Commissioner has no power to condone any delay in filing rebate claim. 5. The learned Counsel for the respondent assessee argued that export of service is not chargeable to Service Tax. Further, Rule 4 of the Export of Service Rule give option to the assessee to export the service without payment of tax, whereas Rule 5 provides for rebate where tax has been paid relating to export of service. Thus, once the service is not taxable, the amount deposited by the appellant is not tax but in the nature of deposit and as such for refund of deposit, limitation as per Section 11B does not attract. Accordingly, he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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