2011 (9) TMI 193 - AT - Service Tax

Export of goods - refund of service tax under Notification No.41/2007-ST, dt.6.10.07 - port service - storage or warehousing service - insurance service - Technical Testing & Analysis services - Held that - Regarding Technical Testing & Analysis services, the notification provides for refund only when such service is received in terms of written agreement with the buyer. Since there is no written agreement, refund is not admissible. - refund not allowable. The refund claim as regards Port service is admissible and allowed and as regards Service Tax on insurance, the appellant shall submit a statement before adjudicating authority for calculating admissible refund. - matter remanded back.

Summary

Issues:
1. Refund claim for Port services disallowed due to lack of proof of authorization by the port service provider.
2. Refund claim for Storage or Warehousing services denied for failure to show approval by competent authority.
3. Refund claim for Insurance services disallowed due to lack of documentary proof for insurance related to export goods.
4. Refund claim for Technical Testing & Analysis services disallowed for absence of a written agreement with the buyer.

Analysis:
1. The appellant's refund claim for Port services was disallowed because of the absence of proof regarding authorization by the port service provider. However, the Tribunal clarified that the focus should be on whether Service Tax was paid for the port service, not on the authorization by the port. Citing previous judgments, the Tribunal held that the appellant should not be required to verify the authorization status of the service provider, leading to the allowance of the refund claim for Port services.

2. The refund claim for Storage or Warehousing services was denied as the appellant failed to demonstrate approval by the competent authority, a requirement under the notification. Despite the appellant's argument that this was not the initial ground for the Show Cause Notice, the Tribunal emphasized that both authorities could assess fulfillment of conditions. The appellant, due to the small amount involved, did not object to the denial of this claim, resulting in the disallowance of the refund claim for Storage or Warehousing services.

3. The refund claim for Insurance services was rejected due to the lack of documentary evidence linking the insurance to export goods. Upon review, the Tribunal found that the submitted marine policy covered export and import cargo, meeting the notification requirements. The Tribunal directed a re-examination by the original adjudicating authority to verify the statement provided by the appellant, indicating that if the Service Tax was paid for insurance related to export, the refund should be allowed.

4. The refund claim for Technical Testing & Analysis services was disallowed as the appellant could not produce a written agreement with the buyer, a prerequisite for refund under the notification. Since no written agreement existed, the refund for Technical Testing & Analysis services was deemed inadmissible.

In conclusion, the Tribunal allowed the refund claim for Port services, directed a re-examination of the Insurance services refund claim, disallowed the refund claim for Technical Testing & Analysis services, and rejected the claim for Storage or Warehousing services. The matter was remanded to the original adjudicating authority for further review, ensuring a fair opportunity for the appellant.