EM JAY ENGINEERS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal is filed by the appellant against the rejection of their refund claim of Rs. 1,40,628 on the ground that they have not filed the refund claim within time and Rs. 1,74,809 is not admissible as per Notification No. 2 of 2007 -ST dated March 1, 2007.

(2.) THE brief facts of the case are that the appellant filed a refund claim of Rs. 6,71,439 for the period October 2005 to June 2007 on the ground that they are not liable to pay service tax as the appellant was appointed by foreign company for promoting their sales in India and the appellants are getting commission from the foreign principal in foreign currency and their activities are considered as export of services and the same are exempted from payment of service tax. However, they paid service tax under protest. The issue was settled and the appellant's activities had been considered as export of service and exempted from payment of service tax. After scrutiny of the claim, a show -cause notice was issued to them as to why the refund claim should not be rejected due to various discrepancies noticed by the Department. The adjudicating authority sanctioned the refund claim of Rs. 3,56,002 and rejected an amount of Rs. 1,40,268 on the ground that the claim was not filed within time and Rs. 1,74,809 is not admissible as per Notification No. 2/2007 -ST dated March 1, 2007. The appeal was rejected by the Commissioner (Appeals). Aggrieved from the same the appellant is before me.

(3.) ON the other hand, the learned Senior Departmental Representative appearing on behalf of the Revenue submitted that in this case the appellant provided their service in India and same are being used in India, hence the appellant is liable to pay service tax. In support of his contention he placed reliance on All India Federation of Tax Practitioners v. Union of India reported in : [2007] 9 VST 126 : [2007] 7 STR 625 wherein the honourable apex court has observed as under: