2011 (8) TMI 274 - AT - Service Tax

Refund - terminal handling charges - Notification No. 41/2007-ST dated 06.10.2007 - Since it is not very clear as to what exactly was the service received by the appellants and whether the findings on fact by the original adjudicating authority that what was received was business support service was correct, this aspect needs to be verified - It is also necessary to see as to what exactly was the service received by the appellant on which the refund claim was made and whether the finding of facts by the original adjudicating authority that what was received was business support service, is correct - matter is remitted to Commissioner(A)

Summary

Issues:
1. Rejection of refund claim for service tax paid on terminal handling charges under Notification No. 41/2007-ST.
2. Discrepancy in grounds for rejection of refund claim by the original adjudicating authority and the learned Commissioner.
3. Interpretation of services provided by shipping liners in relation to port services.

Analysis:
1. The appellant filed a refund claim for service tax paid on terminal handling charges under Notification No. 41/2007-ST. The original adjudicating authority rejected the claim, stating that the services provided were not listed in the notification and were deemed as business support services. The authority also noted that terminal handling charges became a specific service only after Notification No. 17/2009-ST. The appeal against this rejection resulted in the impugned order rejecting the refund claim.

2. The learned advocate for the appellant argued that the learned Commissioner rejected the appeal on a different ground not mentioned in the show cause notice or the original order. The Commissioner based the rejection on the requirement that port services must be provided by a person authorized by the Port, which the shipping liners, in this case, were not. The discrepancy in grounds was acknowledged by the learned DR.

3. The Tribunal considered the submissions and found that the grounds for rejection by the Commissioner were entirely different from those of the original adjudicating authority. The nature of the services received by the appellant, whether port services or business support services, needed clarification. The Tribunal remanded the matter to the Commissioner (Appeal) for a reevaluation based on the facts and documents available. The Commissioner was instructed to determine the actual service received by the appellant and provide an opportunity for the appellant to present their case.

This judgment highlights the importance of consistency in grounds for rejecting refund claims and the need for a clear understanding of the services provided in relation to the relevant notifications. The remand to the Commissioner (Appeal) aims to resolve the discrepancy and ensure a fair assessment of the refund claim based on accurate facts and interpretations.