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TMI Blog2023 (6) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... tegory of services "consulting Engineers Services" to M/s Minnesota Steel Industries, LLC, USA (now known as Essar Steel Minnesota LLC) are export of services and service tax was not leviable under the Finance Act, 1994 as the services rendered by M/s Essar Engineering Ltd. were consumed outside the India. Service tax inadvertently paid by them on receipt of payment in Indian Rupee made by M/s Essar Engineering Services Ltd. consequent to the novation agreement entered with M/s Essar Engineering Services Limited. (EESL) M/s Essar Steel Minnesota LLC, UAE (ESML) and M/s Essar Projects (India) Ltd. (EPIL). The appellant in para 1 (g) of refund claim and in their letter dated 21.02.2012 clarified that the payment for the services would be rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal against the same ought to have been admitted and allowed. 3. He also submits that appellant specifically argued before the Commissioner (Appeals) that the order-in-original was passed without considering or dealing with the ground raised in the refund claim application that Service tax was not leviable as the service rendered by the appellant were consumed outside India by ESML; and service tax being destination -based consumption tax, only such service which are consumed in India are taxable under the Finance Act, 1994, as was evident from Section 64 of the said Act and CBEC's Instruction F.No. V/DGST/03/Gen/Ins/01/2004 dated 17.08.2004, wherein the board has clarified that no service tax is leviable on services intended for consumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and the claim needs to be decided by the department, whether in favour or against the asseseee. He Placed reliance on the following decisions. (i) Usha International Vs. Comm. Of Customs (I), Mumbai [2017(357)ELT 532 (Tri. -Mum) (ii) Persistent Systems Ltd. Vs. Comm. Of CE & ST, Pune -III [2016 (43) STR 117 (Tri. -Mum.) 6. He also submits that return of claim with a direction to file it duly complete in all aspects, i.e. after receipts of payment in foreign currency, would result in the claim becoming time-barred as the claim had to be filed within one year of the erroneous payment. 7. Shri G. Kirupanandan, learned Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. He placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative action is absurd as the Asstt. Commissioner, while deciding a refund application, is required to act as a quasi-judicial authority. The legal position in this regard is settled by several decision of this Tribunal such as Koya& Co. Construction P. Ltd. v. CCE - 2010 (262) E.L.T. 1014 (Tri.-Bang.) = 2011 (24) S.T.R. 120 (Tribunal), Hyderabad Industries Ltd. v. CCE - 2002 (145) E.L.T. 463 (Tri.-Del.), Gujarat Ambuja Cement Ltd. v. CCE - 2006 (197) E.L.T. 39 (Tri.-Del.) and Bhagwati Gases v. CCE, Jaipur - 2008 (226) E.L.T. 468 (Tri.-Del.). 10. We find that once an application of refund has been filed before the refund sanctioning authority, the said authority is duty bound to decide the refund application one way or the other. The refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Act, read with CBEC FAQ and instruction F.No. V/DGST/03/Gen/Ins/01/2004 dated 17.08.2004 wherein, in the context of the territorial coverage of the Finance Act, 1994 to the state of the Kashmir, the Board had clarified that no service tax is leviable on services intended for consumption in Kashmir. The concept that Service tax legislation in India is a destination -based consumption tax finds a clear expression in the board circular Nos. 56/5/2003-ST dated 25.04.2003 and 334/3/2011-TRU dated 28.02.2011." In para 1(g) of refund application appellant also submitted as under: "that though e provision of the Export of Service Rules, 2005 are not relevant when the services in question are not taxable at all (as explained above) , even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immaterial whether the payment for the services is received in Indian Currency or foreign currency. When the services in question were not taxable at all, as they were consumed outside India, the refund claim could not have been returned as premature on the ground that payment for the services were to be received in foreign exchange by M/s EPIL on a future date. Therefore the impugned order-in-appeal passed by the Ld. Commissioner in the present matter legally not correct. 15. We find strong force in appellant's claim on service being outside the taxable territory of India. Admittedly the disputed transaction related to services happened outside India. The service in respect of such transaction is rendered, received and consumed outside In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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