2011 (8) TMI 124 - AT - Service Tax

Refund - Notification No. 41/2007-ST - GTA service - on the basis of genuineness of claim - Service tax refund claim has been rejected in respect of Commission Agent service on the ground that the appellant did not produce any agreement - Service tax refund claim has been rejected in respect of Commission Agent service on the ground that the appellant did not produce any agreement. Learned counsel submitted that during the relevant time no agreement was required. Since this is a legal argument, original adjudicating authority is required to see whether any agreement was required at all during the relevant time - Appeal is allowed by way of remand

Summary

Issues:
1. Refund of service tax on Terminal Handling Charges (THC) & Bill of lading, Repo charges - classification as Port services or Business Support Services.
2. Refund claim for GTA services rejected due to alleged tampering of invoices.
3. Rejection of service tax refund claim for Commission Agent service due to absence of agreement.

Issue 1: Refund of service tax on THC, Bill of lading, Repo charges

The appellants filed refund claims for service tax on THC, Bill of lading, and Repo charges, which were rejected on the basis that the services provided were classified as Business Support Services, not Port services. The appellants argued that they received Port services, but both lower authorities determined the services as Business Support Services based on the service providers' registration. The appellants sought a remand to provide evidence that the services were Port services and tax was paid accordingly. The matter was remanded for further verification, emphasizing the need to establish the nature of services received for refund eligibility.

Issue 2: Refund claim for GTA services

The refund claim for GTA services was denied due to alleged tampering of invoices, specifically alterations in the consignment note regarding consignor, consignee, container number, seal number, and invoice numbers. The appellants contended that any corrections were made with the consigner's approval and denied making any unauthorized alterations. The issue of tampering arose post verification by the Commissioner (Appeals), prompting a remand to verify the authenticity of corrections and insertions before determining refund eligibility.

Issue 3: Rejection of service tax refund claim for Commission Agent service

The rejection of the service tax refund claim for Commission Agent service was based on the absence of a produced agreement. The appellants argued that no agreement was required during the relevant period. The legality of requiring an agreement during that time was questioned, necessitating a remand to ascertain whether an agreement was mandatory during the relevant period.

In conclusion, the impugned orders were set aside, and the matters were remanded to the original adjudicating authority for a fresh decision, allowing the appellants a reasonable opportunity to present their case and establish the eligibility for service tax refunds based on the nature of services received and the authenticity of documentation.