2011 (10) TMI 137 - AT - Service Tax

Refund claim of service tax - transport of goods by road, transport of goods by rail, agency charges and port charges and commission charges for export of goods has been rejected In respect of transport of goods by rail, the claim has been rejected on the ground that no evidence has been produced to show that the service provider has not availed cenvat credit of service tax - Assesse submitted that they would satisfy the original adjudicating authority by producing the documents and seeks remand on this ground refund of service tax paid on Port service has been rejected on the ground that service provider was not authorized by the port. In this connection there are several decisions of the Tribunal holding that at the receiver s end, refund cannot be denied on the ground that service provider was not authorized by the port As regards CHA Services, the refund has been denied on the ground that services provided by the CHA were not in the nature of CHA service at all If the service rendered as CHA and tax has been paid under the category, it would not be appropriate to disallow the credit Services of Commission Agents located abroad is available or not. Learned counsel submits that the service received is for sales promotion of the goods manufactured by the appellant. There are several decisions taking a view that the service tax paid on Commission Agent service located abroad for sales promotion is admissible for the purpose of cenvat credit and thereby refund. Therefore, in respect of these services also refund is to be held as admissible.

Summary

Issues:
1. Rejection of refund claim for service tax paid on various services including transport of goods by road, transport of goods by rail, agency charges, port charges, and commission charges for export of goods.
2. Rejection of refund for port services due to the service provider not being authorized by the port.
3. Denial of refund for CHA services on the grounds of misclassification of services provided.
4. Eligibility of refund for service tax paid on services of Commission Agents located abroad.

Analysis:

1. The judgment addresses the rejection of a refund claim for service tax paid on different services. Concerning the transport of goods by rail, the claim was denied due to the lack of evidence showing that the service provider did not avail cenvat credit. The appellant argued that the C & F agent acted as a clearing agent and paid for rail transportation on their behalf, supported by an invoice from CONCOR. The judge agreed that this issue requires reconsideration by the original adjudicating authority. Similarly, for the transport of goods by road, the claim was rejected based on incomplete documentation. However, the appellant provided additional information in a covering letter, leading the judge to accept the plea for remand to satisfy the authority with proper documentation.

2. The judgment also discusses the rejection of a refund for port services due to the service provider not being authorized by the port. The judge referred to previous Tribunal decisions stating that the refund cannot be denied based on the authorization of the service provider by the port at the receiver's end. Citing relevant case law, the judge set aside the denial of refund on this ground.

3. The denial of refund for CHA services was based on the argument that the services provided were not in the nature of CHA services. The judge highlighted the importance of examining whether the invoices issued by the CHA specifically show the service tax paid under the heading of CHA service. Emphasizing the classification of services rendered, the judge stated that if the service was indeed CHA-related and tax was paid accordingly, disallowing the credit would not be appropriate.

4. Lastly, the judgment addressed the issue of refund eligibility for service tax paid on services of Commission Agents located abroad. The appellant argued that the services received were for sales promotion of their goods. Citing precedents supporting the admissibility of service tax paid on Commission Agent services located abroad for cenvat credit and refund purposes, the judge concluded that refund for these services should be considered admissible.

5. Due to the original adjudicating authority's failure to verify documents and the misconception that documents were not submitted, the matter was remanded for a reevaluation based on the documents provided by the appellant.