2011 (3) TMI 1256 - AT - Service Tax

Refund of service tax paid on port services denied - Held that - In the absence of a clear finding that what was received was port service or not, the denial of refund and on the ground that the service provider was not authorised cannot be sustained. Therefore unless the department is able to show that the service provider was not port service, the refund cannot be denied. Refund of service tax paid on testing & analysis service and export certification service denied - Held that - Since the refund is admissible only in respect of services received as per the requirements of written agreement and subject to submission of copy of written agreement, the lower authorities cannot be found fault with for requiring that the same should be provided. Therefore the claim of the appellant that they are eligible for refunds in respect of testing & analysis service and export certification services cannot be sustained and therefore appeal in respect of these two services has to be rejected. Refund is with regard courier service denied - Held that - In the absence of written agreement for purchase of these goods by the foreign importer from the appellant, it would not be possible to know whether there was a condition like this. The learned advocate submits that he would like to verify the written agreement once again and therefore requested for remand of the matter. Refund claim relating to transport of the goods from the appellant-factory to the ICD denied - Held that - As the details of exporter invoices relating to export goods are not mentioned in the lony receipt and the corresponding shipping bill and exporter makes a declaration, these are rectifiable defects and appellants shall be given an opportunity to rectify these defects. Refund claim for service tax paid on CHA services - invoices do not contain the name of the service in respect of the one CHA - CHA licence details were not available - Held that - This is also a rectifiable defect and appellants have to be given an opportunity to rectify this defect.

Summary

Issues:
1. Denial of refund claims filed by the appellant.
2. Refund denial on the ground of service provider authorization for port services.
3. Refund denial for testing & analysis service and export certification service.
4. Refund denial for courier service due to missing IEC number and export invoice numbers.
5. Refund denial for disinfecting and fumigation service due to lack of written agreement.
6. Refund denial for transport of goods to ICD due to missing details in the receipt.
7. Refund denial for CHA services due to missing service name and CHA license details in invoices.

Issue 1: Denial of refund claims
The appellant's refund claims were denied in two orders. The learned advocate argued that both appeals should be considered together as they involve common grounds for rejection. The denial of refund on various services was challenged, leading to a common order being passed.

Issue 2: Refund denial for port services
Refund of service tax paid on port services was denied due to lack of authorization from the port service provider. The appellant argued that if the service received was indeed a port service, denial based on provider authorization would be unjust. The tribunal agreed, stating that denial without clarity on the service nature is not justified.

Issue 3: Refund denial for testing & analysis and export certification services
Refund for these services was denied as the appellant failed to produce a written agreement as required by Notification No. 41/07. The tribunal noted that the refund eligibility is tied to services provided as per a written agreement, and the lack of such agreement led to the denial.

Issue 4: Refund denial for courier service
Refund for courier service was denied due to missing IEC number and export invoice details. The appellant explained the software limitations during the invoice generation period. The tribunal allowed a remand for rectification, emphasizing that procedural defects can be corrected subsequently.

Issue 5: Refund denial for disinfecting and fumigation service
Refund for these services was denied due to the absence of a written agreement. The tribunal highlighted the specific conditions for refund under Notification No. 41/07, requiring a written agreement and accreditation by a statutory authority. A remand was granted for further consideration.

Issue 6: Refund denial for transport to ICD
Refund for transport services was denied due to missing details in the receipt. The tribunal considered these defects rectifiable and granted an opportunity for rectification.

Issue 7: Refund denial for CHA services
Refund for CHA services was denied due to missing service name and CHA license details in invoices. The tribunal deemed these as rectifiable defects and allowed a remand for correction.

In conclusion, the impugned orders denying the refund claims were set aside, and the matters were remanded for fresh decisions considering the observations made on various services.