2010 (11) TMI 293 - AT - Service Tax

Exemption - Refund - Export service - the Appellant paid Service Tax along with the Education Cess and claimed the refund of Service Tax and Education Cess of export services - Revenue submitted that Notification No. 41/07-S.T., dated 6-10-07 only provides exemption of Service Tax by way of refund - The Notification does not provide any refund of Service Tax by way of Education Cess - Tribunal decision in case of Kamakhya Cosmetics & Pharma. Pvt. Ltd., denied refund of Education Cess under the Area Based Exemption Notification - Hence, in absence of any notification granting refund of Education Cess in respect of specified taxable services used for export of goods, find no infirmity in the impugned Order and the Appeals are dismissed.

Summary

Issues:
Refund of Education Cess in export service denied under Notification No. 41/2007-S.T.; Applicability of Notification for refund of Education Cess; Interpretation of Notification No. 41/07-S.T. and Education Cess levy under Finance Act, 2004; Comparison with previous tribunal decisions on refund of Education Cess under different notifications.

Analysis:

The Appeals were filed against the impugned Order denying the refund of Education Cess in respect of export service. The Appellant contended that under Notification No. 41/2007-S.T., exemption of Service Tax on specified taxable service by way of refund is granted. They argued that since Education Cess is part of Service Tax, they are entitled to the refund. On the other hand, Revenue argued that the Notification only exempts Service Tax by way of refund and does not cover Education Cess. They cited a Tribunal decision upholding the denial of refund of Education Cess claimed under a different notification.

The Tribunal observed that Notification No. 41/2007-S.T. provides exemption from Service Tax by way of refund, while Education Cess is levied separately by the Finance Act, 2004. The Tribunal noted that there was no specific notification granting refund of Education Cess imposed under the Finance Act, 2004. The Appellant's reliance on a Single Bench decision was countered by a Division Bench decision holding that in the absence of a notification, refund of Education Cess is not admissible.

The Appellant claimed the benefit of refund of Education Cess under Notification No. 41/2007-S.T., but the Tribunal pointed out that the notification only allows refund of Service Tax. The Tribunal referred to a previous case involving a similar issue of refund of Education Cess under a different notification, where the Tribunal held that there was no provision for such refund. The Tribunal emphasized that the absence of a specific notification for refund of Education Cess in the context of specified taxable services used for export of goods led to the dismissal of the Appeals.

In a detailed comparison with previous decisions, the Tribunal highlighted that the provisions of the relevant notifications varied, and the Appellant's reliance on decisions related to different notifications was deemed inapplicable to the present case. The Tribunal concluded that without a notification explicitly granting refund of Education Cess in the context of specified taxable services for export, there was no basis for allowing the refund. Consequently, the Appeals were dismissed based on the absence of a legal provision for refund of Education Cess in the given scenario.