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TMI Blog2024 (7) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no doubt that the provisions of Section 11B are applicable in so far as the provisions of the Act are concerned. However, the contention of the appellant is that their claim is not for refund, but a case of rebate in respect of the exports made and the provisions of Section 11B does not deal with it. In this regard, the Commissioner in the impugned order had relied on the provisions of Explanation A to Section 11B, which the appellant has completely ignored while making the submissions - the appellant exported services with payment of service tax and filed applications for claiming a rebate of service tax paid as per Rule 5 of the Rules, 2005. Hence the contention that what is being claimed is not tax but was only a deposit is unsu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HON BLE MS. BINU TAMTA , MEMBER ( JUDICIAL ) And HON BLE MS. HEMAMBIKA R. PRIYA , MEMBER ( TECHNICAL ) Shri Anil Bezawada , Advocate for the appellant Shri Rajeev Kapoor , Autorised Representative for the respondent ORDER BINU TAMTA : 1. Challenge is to the rejection of the rebate/refund claims on the ground of limitation in terms of Section 11B of the Finance Act, 1994 The Act and insufficient documents by both the lower authorities. 2. The appellant is providing Business Auxiliary Service and Consulting Engineer s Service to its group companies situated outside India and received consideration in convertible foreign exchange. The appellant filed refund claims under Rule 5 of Export of Service Rules, 2005 (Rules) read with Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case. The learned Counsel submitted that the appellant has provided the necessary documents and, therefore, the impugned order is bad. Alternatively, the learned counsel pleaded that Union of India is not empowered to collect taxes as the services are consumed outside India and it is a settled principle that exports cannot be subjected to tax. 5. The learned Authorised Representative reiterated the findings of the authorities below and placed reliance on the decision of the Apex Court in I.T.C. Ltd. Vs. CCE 2019 (368) ELT 216 (SC) and B.T. (India) Pvt. Ltd Vs. Union of India (2023) 13 Centax 89 (Delhi) . 6. Having heard both the sides and perused the records of the case and the statutory provisions. We may first consider whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B are applicable to the service tax matter, limitation period prescribed therein has to be complied with. 7. The submission of the appellant that the amount collected is not towards tax but is a deposit is incorrect as per their own statement in the synopsis, where it has been stated as under:- Consequently, from 01 April 2006 to 31 August 2007, the appellant exported services with payment of service tax and filed applications for claiming a rebate of the service tax so paid as per Rule 4 of the Export of Service Rules, 2005 (the rules) 8. Thus, the appellant exported services with payment of service tax and filed applications for claiming a rebate of service tax paid as per Rule 5 of the Rules, 2005. Hence the contention that what is be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such taxable service or service tax or duty paid on input services or inputs, as the case may be, used in providing such taxable service and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification. The appellant though had an option to export without payment of service tax, however, under the self-assessment, had chosen to assess and deposit the service tax at the time of export of service. Therefore, the contention raised by the appellant is unsustainable and as observed by the Commissioner that the appellant had not paid the service tax at the instance of the department. Moreover, the provisions of Section 73A of the Act provides for such conting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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