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TMI Blog2014 (12) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal, directed jurisdictional Assistant Commisisoner to dispose of the rebate/refund claims within a period of one month from the date of receipt of the order, by holding that the services provided by M/s. Vodafone (India) Ltd. by way of telecom service provided to foreign telecom service providers in respect of international inbound roamers while they are in India, amounted to export of service in terms of the Export of Service Rules, 2005 and, therefore, M/s. Vodafone (India) Ltd. are entitled for refund/rebate of the service tax paid in respect of such transactions. 3. Since the Revenue did not implement the said order, M/s. Vodafone (India) Ltd. filed a miscellaneous application which was heard by the Tribunal on 30/10/2014 and the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al that they would like file before the appropriate authority, they cannot refuse to grant refund on the ground that the appellant is required to file certain documents which was not the case when they pleaded the case before this Tribunal. 5. Now, we take up the application for rectification of mistake. 5.1 In the application made, it is urged by the Special Consultant appearing for the Revenue, that there is an error apparent on the face of the record as no finding at all has been given regarding the applicability of the principles of unjust enrichment in spite of the fact that the same was one of the main grounds of the appeal and the service tax amount has been collected from the customer. It is Revenue's understanding of our orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claim. Therefore, the Commissioner (A) in his order failed to justify principle of unjust enrichment due to lack of proper reasoning" 5.3 We observe that, the Revenue has not filed any documentary evidence before this Tribunal while passing the impugned order dated 21/08/2014 as to how M/s. Vodafone (India) Ltd.has unduly enriched themselves by filing the refund claim. Therefore, by merely making a statement that unjust enrichment principle has not been examined that by itself would not substantiate the Revenue's claim that there was unjust enrichment in the transaction. Nothing prevented the Revenue by producing relevant documentary evidence which clearly establish unjust enrichment if the refund is sanctioned to the service prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough have claimed that this is not sufficient, they have not come up with any corroborative evidence or detailed reasoning for not accepting the documentary evidence submitted by the Respondent No. 2 along with the refund claim. The Hon'ble CESTAT in C.Cus & C.Ex, Guntur vs. Empee Sugar and Chemicals Ltd. in their Final Order No. 2058/2006, dated 15-12-2006 reported in 2007 (7) S.T.R. 622 (Tri. - Bang.) has held that: 'Unjust enrichment - Education cess - Proof of non-passing of duty to buyer - Chartered Accountant's certificate about same has evidentiary value - It is acceptable as he cannot give incorrect/false certificate since that would have p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which was not urged before him. Therefore, the ground taken by the Revenue that it had urged this point before the lower appellate authority is not borne out from the records and, therefore, it cannot be said that there is an error apparent on the face of the record committed by this Tribunal. We further observe that while disposing of the appeal filed by the Revenue, we have also observed that the transaction involved is one of export, and therefore, the service provider is rightly entitled for the refund of the service tax paid. The learned counsel for the respondent also submits that even in respect of the export transaction, if tax is recovered from the customers, the same would not disentitle the tax payer from claiming refund as hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and the same was upheld by the hon'ble High Court of Gujarat reported in the same case 2011 (272) ELT A164 (Guj). Therefore, even on merits also, the contention of the Revenue has no basis. 6.2 Lastly, we observe that in Rashtriya Chemicals & Fertilizers Ltd. 2012 (286) ELT 610, this Tribunal observed that even if grounds have been taken in appeal memorandum but if the same is neither urged nor argued at the time of hearing there cannot be any mistake which involves rectification. The same view was affirmed by the hon'ble High Court of Bombay in the same case reported in [2013 (293) ELT 667]. 7. In view of the above discussion, we are of the considered view that there is no merit in the contention urged in the Rectification of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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