9911796707
TMI Blog2022 (3) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant in turn entered into an agreement on 30.03.2004 with the foreign supplier M/s. FTF Bumar Ltd., Poland (Bumar for short), for the supply of ARVs which was later on supplied to MOD. Appellant's responsibilities, in terms of the contract, was to provide various services to Bumar to facilitate execution of the contract, including testing, inspection, certification, warranty, maintenance, etc. for which Bumar would pay 10% of the value of engine to the appellant, as coordination expenses. 2.2. Appellant had raised two debit notes in this regard, which according to the appellant was towards export of services and hence would not attract any levy under service tax. But since the appellant had paid the service tax, inadvertently, it acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a de-novo Order where by the appellant's refund was again rejected. Seriously aggrieved, the appellant preferred an appeal before the first appellant authority, who vide impugned Order-in-Appeal has rejected the appeal thereby confirming the rejection of refund claim as made by the Adjudicating authority. 2.5. In terms of the said contract, appellant had received a certain amount, out of which 10% was understood to be towards Coordination expenses. The subject equipment, which were held to be heavy motor vehicles in the first round, cannot be allowed to be tampered with, indirectly, by the revenue who have not challenged the same. 3.1. In the first round of litigation before the Commissioner (A), the Commissioner (A) had given factual fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been addressed at all in the OIO." (Emphasis in bold by me) 3.2. Having observed thus, however, he had chosen to remand the matter back to the file of adjudicating authority to pass a fresh order. Those findings given by the Commissioner (A) having attained finality, the same is binding on the revenue. In the de-novo order the authority has once again denied the refund solely on those very grounds which were in fact held to be the case of mere procedural or technical lapse and which were not substantive. This would mean that those technical or procedural lapse were not per se sufficient to deny otherwise eligible refund claim, have been once again used to deny appellant's claim. The Commissioner (A) had held in categorical terms, as regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of this alone, I am of the view that the impugned order cannot be sustained, and hence, I set aside the same. In view of this, it is held that the appellant's service would qualify as export service, ARVs are heavy vehicles and hence, are not covered under Section 65(9) ibid. and hence the ST paid under RCM was by mistake as claimed by the appellant, which qualifies for refund. I find support in this regard, from a recent ruling of Hon'ble jurisdictional High Court of Karnataka, in the case of Way2Wealth Brokers Pvt. Ltd. Vs. CCT, Bengaluru [2021-VIL-770-KAR-ST] wherein, it has been held as under: "14. .... ... .. .... It has been thus observed that what one has to see is whether the amount paid by the assessee under a mistak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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