Order Date – 09 June 2023

Parties: Aegis Limited Vs Commissioner of Central Excise & ST, Surat-I

Facts – 

• The Appellant, Aegis Limited, filed a refund 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 are export of services and service tax was not leviable under the Finance Act, 1994.
• The same was returned and directed the appellant to file the refund claim duly completed in all respects as the payment for said services has not been received in convertible foreign exchange as stipulated in Rule 3(2)(b) of Export of Services Rules, 2005, condition required to be fulfilled for treating as export of services had not been fulfilled.

Issue – 

• Whether the rejection of refund is in order?

Order – 

• The Tribunal observed that 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, the order of the lower authority is untenable.
• 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.
• In the present case the whole of service rendered and consumed outside India is beyond the taxable territory as per Finance Act, 1994, hence not liable to service tax. Thus, it was held that in the instant case, the amount deposited by the appellants without any authority of law cannot be considered as Service Tax. Therefore, the appellant are entitled to get the refund.
• The appeal is allowed.