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TMI Blog2015 (10) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. - Appeal No. ST/528,529,661-663,732,733/2011 - Order No. A/10835-10841/2015 - Dated:- 22-6-2015 - P K Das, Member (J) And P M Saleem, Member (T) For the Appellant : Shri P Paranjape, Adv For the Respondent : Dr J Nagori, AR ORDER Per P K Das A common issue involves in these appeals and therefore, all are taken up together for disposal. 2. The relevant facts of the case, in brief, are that the Appellants are engaged in the business of providing Telecommunication service and registered with Service Tax authorities for payment of Service Tax. The Appellants filed rebate claims under Rule 5 of Export Service Rules, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Supreme Court, the definition of Telecommunication service and the circulars of Board. He submits that the Hon'ble Supreme Court in the case of All India Federation of Tax Practitioners Vs Union of India - 2007 (7) STR 625 (SC) had held that the Service Tax is a VAT which in turn is destination based consumption tax. The Hon'ble Supreme Court has laid down the law on the subject of nature or location of any service, the criteria for taxing event of service tax. It is an essential activity while determining the nature of location. In the present case, the taxing event is in India, as the Appellant rendered the service directly to the International Inbound Roamer (IIR) and when the IIR leaves in India, the service is concluded. He categorically submits that in the present case, there is no need for devising any test, since it is not in dispute that the activity which comprises the taxable event both performed and consumed in India. He drew the attention of the Bench to the relevant portion of the Export Service Rules. Thus, the second condition of the definition of Export of service Rule, used outside India is not satisfied and thus, it cannot be treated as exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cularNo.111/05/2009/ST, dt.24.02.2009. He submits that the Board circular had clarified in different perspective, the benefit accrued outside India and then it will be treated as export. He relied upon the subsequent circular of the Board No.141/10/2011-TRU, dt.11.05.2011 that clarifies the situation. He submits that the Tribunal in the case of Vodafone Cellular Ltd - 2014 (34) STR 890 had categorically given the finding that the rebate claim is partly barred by limitation and have also followed various decisions. He relies on the following decisions:- a) Everest Flavours Ltd Vs UoI 2012 (282) ELT 481 (Bom.) b) CCE Vs GTN Engineering - 2012-TIOL-369-HC-MAD-CX c) CCE Chennai Vs Celebrity Designs India Pvt.Ltd -2015-TIOL-646-HC-MAD-CX 6. After hearing both the sides and on perusal of the records, we find that the Adjudicating authority rejected the rebate claim on merit as well as partly barred by limitation. There is no dispute on the facts of the case that the Appellants raised to Bills to FTO as per agreement for rendering telecommunication service to the International Inbound Roamer registered with FTO. The learned Authorised Representative for the Revenue had fairly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to business or commerce to a recipient located outside India and when provided otherwise to a recipient located outside India at the time of provision of such service. The additional conditions required to be satisfied are such services as are provided from India and used outside India; and consideration for the service rendered is received in convertible foreign exchange. As observed earlier, the service is rendered to a foreign telecom service provider who is located outside India and therefore, the transaction constitutes export and we hold accordingly. 5.3 The Board's clarification vide Circular No.111/5/2009-S.T., dated 24-2-2009 makes this position very clear. Para 3 of the Circular which is relevant is reproduced verbatim below:- 3. It is an accepted legal principle that the law has to be read harmoniously so as to avoid contradictions within a legislation. Keeping this principle in view, the meaning of the term 'used outside India' has to be understood in the context of the characteristics of a particular category of service as mentioned in sub-rule (1) of rule 3. For example, under Architect service (a category I service [Rule 3(1)(i)]), even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Western Union abroad and this service is 'business auxiliary service', being provided to Western Union. It is the Western Union who is the recipient and consumer of this service provided by their Agents and sub-agents, not the persons receiving money in India. The ratio of the said decision applies squarely to the facts of the present case before us. Once the ratio is applied, it can be easily seen that the service recipient is the foreign telecom service provider and not the subscriber of the foreign telecom service provider who is roaming in India. 7. The Tribunal relied upon the decision of the Tribunal in the case of Paul Merchant Ltd (supra). The main contention of the learned Authorised Representative that the Tribunal had not considered the decision of Hon'ble Supreme Court in the case of All India Federation of Tax Practitioners (supra). He heavily relied upon the principle of equivalence as referred by the Apex Court in the case of All India Federation of Tax Practitioners (supra). It is also argued that the Hon'ble Supreme Court observed that it is a destination based consumption tax. The Tribunal in the case of Vodafone Essar Cellular Ltd - 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. The submission of the learned Authorised Representative that the Tribunal had not considered the decision of the Hon'ble Supreme Court in the case of All India Federation of Tax Practitioners (supra), is not correct. We do not find any force in the submission of the learned Authorised Representative that the illustration made by the Tribunal in the case of Vodafone Essar Cellular Ltd (supra) would not be appropriate. In any event, the judgment cannot be distinguished merely on the basis of illustration. We find that in the Appellant's own case Vodafone Essar Cellular Ltd, had discussed all the issues in detail and we agree with the same on merit. 9. Regarding the rejection of the rebate claim as time barred, the Tribunal in the case of Vodafone Cellular Ltd Vs CCE Pune-III - 2014 (34) STR 890 held as under:- 5.3 However, as regards the time-bar issue, the contention of the Revenue has merits. We notice that the provisions of Section 11B of the Central Excise Act, 1944, which deals with refund of excise duties has been made applicable to Service Tax vide Section 83 of the Finance Act, 1994. This would imply that the time-limit of one year from the date of payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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