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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 ..... MISSIONER OF CENTRAL EXCISE, GOA [ 2011 (4) TMI 577 - CESTAT, MUMBAI] and BHAGWATI GASES LTD. VERSUS COMMISSIONER OF C. EX., JAIPUR-I [ 2008 (1) TMI 712 - CESTAT, NEW DELHI] the instances were communications issued by department and the issue for consideration was that can such comunications constitute an appealable order or not. It was held that when such communication/letter affects the right of assessee/party then appeal was maintainable. 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 refund application can either be rejected or allowed in part or in full. The provisions of refund do not give liberty to the fund sanctioning authority to return the refund application by terming the same to be premature. Therefore the action of the Asstt. Commissioner in holding the application as premature is really an act of refusal to exercise a statutory duty to decide upon the refund application one way or the other. For this reason also, the order of the lower authority is untenable. The grounds for refund have not been considered by both the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant Shri G. Kirupanandan, Assistant Commissioner (AR) for the Respondent ORDER The brief facts of the case are that the appellant filed a refund claim of Rs. 4,80,21,610 with the Assistant Commissioner, Service tax, Surat-I on 16.11.2011 on the ground that the service provided by M/s Essar Engineering Limited, Hazira (Now merged with M/s AEGIS Ltd.) under the category 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 received in foreign exchanges by M/s Essar Projects (India) Ltd. (EPIL) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Leasing Financial Service Companies Vs. UOI [2010(20)STR 417 (SC). 4. He also argued that the services which are consumed outside the India are not leviable to Service tax in India. He also placed reliance on the following judgments:- (i) Comm. of ST, Delhi Vs. Dewan Travels Pvt. Ltd. [2018(14)GSTL 390(Tri. Del.) (ii) Comm. of ST, Delhi Vs. Paras Holidays Pvt. Ltd. [2016 (44)STR 257 (Tri.- Del.)] (iii) Grey Worldwide (India) Pvt. Ltd. Vs. Comm. Of ST, Mumbai [2015(40)STR1104 (Tri.- Bang.) (iv) Akbar Travels Tours Vs. Comm. Of CEx, Cus. ST, Calicut [2016(45)STR 444 (Tri. Bang.) (v) Al-Hussam India Hajj Umrah Services Management Vs. CCE ST, Cochin [2016(44) STR 280 (Tri.-Bang.)] (vi) Cox Kings India Ltd. Vs. Comm. Of ST, Delhi [2014(35)STR 817 (Tri. Del.) affirmed by the Hon ble Supreme Court at [2015(39)STR J308(SC)] (vii) SGK Consultations Pvt. Ltd. Vs. Comm. Of ST, Delhi [2016(44)STR 690 (Tri. Del.) 5. He further submits that the Ld. Commissioner (Appeals) has grossly erred in not dealing with the plea that there is no provision in law by which a refund claim can be returned back as being premature. The courts have held in number of cases t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner, 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 refund application can either be rejected or allowed in part or in full. The provisions of refund do not give liberty to the fund sanctioning authority to return the refund application by terming the same to be premature. Therefore the action of the Asstt. Commissioner in holding the application as premature is really an act of refusal to exercise a statutory duty to decide upon the refund application one way or the other. For this reason also, the order of the lower authority is untenabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, albeit at a future point of time. Also, by virtue of the novation agreement, EPIL will be regarded as the service provider and therefore the receipts of foreign exchange by EPIL will amount to receipt of such foreign exchange by the service provider. In view of above it is clear that in the present matter, Appellant filed the refund claim firstly on the ground that services provided by them are not taxable since the same was consumed outside India. 13. We find that the grounds for refund, as aforementioned, have not been considered by both the authorities nor the judgments relied upon by the appellant considered by both the authorities, nor there is any finding distinguishing the same. Thus clearly, there is serious violation of principles of natural justice apparent on the fact of record. 14. We find that if the tax itself is not leviable, it would be 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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