2011 (8) TMI 187 - AT - Service Tax

Refund claim - Service Tax credit - for the Show cause notice it is found that the assessee has not submitted any proof regarding the authorization of the port in the case of port service provider. Hence, the refund claim relating to port service is not admissible to the assessee. - By taking the ground that the Service Tax was paid under Business Auxiliary Service head and therefore the credit is not admissible, Revenue is bring out a totally new ground which was not mentioned in the Show Cause Notice and therefore the respondent did not get an opportunity to contest the ground - port services rendered even without authorization of port, Service Tax credit will be available - decided in favor of assessee.

Summary

Issues:
1. Refund claim for Service Tax paid on Terminal Handling charges and Bill of Lading charges under Notification No.41/2007-ST.
2. Eligibility of refund claim based on service provider registration under Business Auxiliary Service.
3. Allegation of service tax payment under Business Auxiliary Service not mentioned in Show Cause Notice.
4. Authorization requirement for port services and its impact on refund claim.

Analysis:
1. The appeal was made by Revenue against a decision allowing the refund claim of the respondent for Service Tax paid on Terminal Handling charges and Bill of Lading charges under Notification No.41/2007-ST.
2. Revenue contended that the service provider was registered under Business Auxiliary Service, not listed for refund under the notification. Also, previous cases were cited where similar refund claims were rejected.
3. Respondent's counsel argued that the Show Cause Notice did not mention the allegation of Service Tax payment under Business Auxiliary Service, and a new ground was raised by Revenue without giving an opportunity to contest it.
4. The Tribunal found that the Show Cause Notice focused on lack of proof regarding port authorization for port services, making the refund claim inadmissible. The new ground raised by Revenue regarding Business Auxiliary Service was not considered valid at this stage.
5. Referring to a previous judgment, the Tribunal upheld that even without port authorization, Service Tax credit for port services would be available, making the respondent eligible for the credit and rejecting the appeal filed by Revenue.