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TMI Blog2017 (6) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... arts under free warranty replacement then in that case, no monetary consideration flow from the buyer and therefore the department's view that bank realization certificate has not been produced is not justified ground for denial of refund. Appeal allowed - decided in favor of appellant. - ST/3335,3343,3336/2012-SM - Final Order No. 20515-20517/2017 - Dated:- 24-4-2017 - Shri S.S Garg, Judicial Member Mr. G. Shivadas, Adv - For the Appellant Mr.Parashiva Murthy, A.R. - For the Respondent ORDER The present appeal is directed against impugned order dated 14.09.2012 passed by Commissioner (Appeals) wherein the Commissioner(Appeals) has rejected the appeal of the appellant by holding that the appellant is not eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E/3335/2012 E/3336/2012 E/3343/2012 Period involved April 2009 to June 009 October 2009 to December 2009 April 2011 to December 2011 Refund claim amount ₹ 97,333/- ₹ 38,157/- ₹ 1,06,552/- Refund claim dated 05.08.2009 21.01.2010 20.03.2012 Date of SCN 14.06.2010 22.12.2010 03.04.2012 Order-in-original sanctioning refund 58/2009 dated 10.08.2009 V/18/02/2010-ST da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST dated 7.7.2009. He further submitted that the condition of realization of sale proceeds as stated under para-4 of the said Notification has to be read in consonance with the provisions under FEMA 1999. He further submitted that as per Section 8 of the FEMA 1999 which provides for such realization, when any amount of foreign exchange is due or has accrued. The phrase foreign exchange due is defined under clause 2(iii) of the Foreign Exchange Management (Realization Repatriation Surrender), Regulations, 2000, as an amount which a person has a right to receive or claim any foreign exchange. He also submitted that in the present case, the appellants have exported the components of vehicles by way of free warranty replacement ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) CCE Ahmedabad Vs Sucheta Metals Ltd [2009(246)ELT 326 (Tri-Ahd) 2) Zenith Spinners Vs UOI [2015 (326)ELT 97(Guj)] On the other hand learned A.R defended the impugned order and submitted that the Assistant Commissioner, Mysore has erroneously sanctioned the refund vide order-in-original dated 10.08.2009 and 15.2.2010 as the appellants have not fulfilled the conditions of Notification No. 17/2009 dated 7.7.2009 and in terms of para 4 of the Notification No. 17/2009 ST dated 07.07.2009, the sale proceeds in respect of the goods exported have to be realized by the exporter to become eligible for the refund and in the absence of the same, as in the present case, the refund of service tax granted to the appellant is recoverable as erro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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