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2011 (8) TMI 363 - AT - Service TaxRefund claim - Notification No. 41/2007-ST dated 06.10.2007 - reading the Rule 5 as it stood prior to its amendment as a whole it is evident that refund of unutilized credit is allowable not only to manufacturers but also available to providers of out put service - It is undisputed fact that the service tax stands paid by the respondent has been admitted by the department as tax liability on the commission paid by the assessee the non-mentioning of such commission amount in the shipping bill in any way will not come in the way for granting of refund to the assessee in terms of the Notification No 17/2008 - Decided in favour of assessee.
Issues:
1. Eligibility for benefit of exemption notification 41/2007-ST dated 06.10.2007, as amended by Notification No 17/2008-ST dated 01.04.2008. 2. Refund claim of service tax paid on commission to a Commission Agent for procuring an order for manufacturing and exporting a ship. 3. Compliance with conditions laid down in the notifications for claiming the refund. Analysis: Issue 1: The main issue in this case is whether the respondent is eligible for the benefit of the exemption notification 41/2007-ST dated 06.10.2007, as amended by Notification No 17/2008-ST dated 01.04.2008. The Tribunal examined the conditions laid down in the notifications regarding services provided by a Commission Agent for export of goods. It was established that the respondent had paid service tax on the commission to the Commission Agent as a recipient of services for the exported ship. Issue 2: The second issue pertains to the refund claim of the service tax paid on the commission to the Commission Agent. The respondent filed a refund claim after realizing they were not liable to pay the service tax. The Tribunal noted that the service tax amount was paid in December 2009, and the respondent had fulfilled the conditions for claiming the refund as per the notifications. Issue 3: The final issue revolves around the compliance with the conditions for claiming the refund. The Tribunal observed that although the commission amount was not indicated in the shipping bill, the fact that the service tax was paid by the respondent was acknowledged by the department. The Tribunal concluded that the non-mentioning of the commission amount in the shipping bill did not prevent the respondent from being eligible for the refund under Notification No 17/2008. In the judgment, the Tribunal extensively analyzed the notifications, the timeline of events, and the legal precedents cited by both parties. Ultimately, the Tribunal upheld the decision of the Commissioner (Appeals) in favor of the respondent, rejecting the appeal filed by the Revenue. The Tribunal found no merit in the Revenue's arguments, stating that the impugned order was correct, legal, and free from any infirmity.
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