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TMI Blog2018 (7) TMI 1796X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple of unjust enrichment would not be applicable - rejection of all six of the rebate claims being barred by the doctrine of unjust enrichment, is hereby set aside. Time limitation - whether the time limit prescribed under Section 11B of the Central Excise Act, 1994 is applicable to the rebate claims? - Held that:- The appellant herein had filed the rebate claim in terms of the aforesaid Notification of 19.05.2005 issued under Rule 5 of Export Service Rules, 2005. The period covered for the rebate was April 2007 to March 2008 and April 2008 to March 2009 and both the applications for refund were filed on 30.11.2010 - provision of Section 11B of the Central Excise Act, 1994 which deals with excise duty, has been made applicable for Service Tax vide Section 83 of the Finance Act, 1994. This would imply that the time limit of one year from the payment of tax for filing of refund claim would apply in respect of Service Tax refund also. Irrespective, there is no time limit set out in the respective notifications, it is otherwise the settled position of law that even if a law is silent on the time limit applicable, a reasonable time limited has to be read into the law. In the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grounds for Rejection a April 2007 to March 2008 16,46,50,441 Limitation and unjust enrichment b April 2008 to March 2009 18,73,19,211 Sub-total [a+b] 35,19,69,652 c June 2009 77,10,913 Unjust enrichment d July 2009 to September 2009 2,11,33,857 e October 2009 to March 2010 6,58,82,101 f April 2010 to September 2010 4,20,11,897 Sub-total [c+d+e+f] 13,67,38,768 Total [a+b+c+d+e+f] 48,87,08,420 3. We have heard Shri Kishor Kunal and Shri Prashant Tahiliani, learned Advocates for the Appellant, and Shri V.K. Pandey, learned DR for the Department. 4. It is submitted on behalf of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espective there is no time limit prescribed under the Notification of 19.05.2005, the period of one year is the time limit prescribed for filing the Refund Claims. Since two of the six Refund Claims have been filed beyond the period of one year, those have rightly been rejected by the Commissioner (Appeals). The order is impressed upon to have no infirmity. The appeal is prayed to be rejected. 7. After hearing both the counsels, our considered opinion is as follows: 8. From the facts on record, it is apparent that the appellant is providing telecom services in India to international inbound roamers registered with foreign telecom network operators, but located in India at the time when the said services were being provided. The moot question for adjudicating the plea of unjust enrichment is as to whether such service is an export service. Export of Services Rules, 2005 qualifies the taxable services into three categories and we observe that the above mentioned telecommunication services provided by the appellant fall under Category 3 thereof. As per Rule 3(1)(iii) of the said Rules, this category deals with such services when provided in relation to business or commerce, be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w our support from the case Vodafone Cellular Ltd. vs. CCE, Pune 2014 (34) STR 890 (Tri.-Mum.) . Since the transaction is that of export, the principle of unjust enrichment would not be applicable. In fact, the Export of Service Rules provide option to the assessee in this situation. He may, either by virtue of Rule 4 thereof to export may not make payment of tax, or by virtue of Rule 5 thereof may claim rebate for providing export services. Since the appellant/assessee has opted for Rule 5 of claiming rebate for providing export services, the decision of both the adjudicating authorities below for holding the said claim of rebate as unjust enrichment, is, therefore, opined to be wrong and being beyond the legal provisions for the purpose. Therefore, rejection of all six of the rebate claims being barred by the doctrine of unjust enrichment, is hereby set aside. 10. Now coming to the rejection of two of the claims being barred by time as well, we adjudicate as follows: 11. The moot question to be considered for the purpose is as to whether the time limit prescribed under Section 11B of the Central Excise Act, 1994 is applicable to the rebate claims Notification No. 11/2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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