2011 (7) TMI 748 - AT - Service Tax

Notification No. 41/2007-ST dated 06.10.2007 - Refund - Time limitation - held that - refund claim beyond prescribed period of limitation not allowable. Regarding refund of service tax paid on CHA service and technical testing service - held that - there cannot be two different yard sticks for charging the service tax and allowing the benefits. - Refund allowed.

Summary

Issues:
1. Power of remand by Commissioner (Appeals) after amendment in Section 35A.
2. Time limitation for filing refund claim under Notification No. 41/2007.
3. Eligibility of refund on service tax paid for technical testing and CHA services.

Analysis:
1. The issue of the power of remand by Commissioner (Appeals) was addressed. The judgment highlighted that the power of remand was removed by amending Section 35A in 2001. Citing the case law of MIL India Ltd. vs. CCE, Noida, it was established that the power of remand no longer exists with the Commissioner (Appeals). The refund claim in this case was found to be time-barred as it was filed beyond the stipulated period of six months. The amendment in Notification No. 17/2009, providing for a one-year time limit, was deemed inapplicable as it was issued after the case event without retrospective effect. The judgment emphasized strict construction of the notification granting benefits.

2. Concerning the time limitation for filing refund claims under Notification No. 41/2007, the judgment detailed the conditions for availing the benefit of the notification. It was noted that the appellant had provided evidence, such as the Notice of Kenya Bureau of Standards, demonstrating the necessity of technical testing services for export goods. This evidence supported the eligibility of the appellant for the refund on service tax paid for technical testing and analysis agency services. Similarly, the judgment allowed the refund on CHA services, emphasizing that there should not be different standards for charging service tax and granting benefits.

3. The judgment concluded by rejecting the refund for the period from October 2007 to February 2008 as time-barred while allowing the refund on service tax paid for technical testing and CHA services. The decision was based on the strict interpretation of the notification's conditions and the evidence presented by the appellant. The appeal was disposed of accordingly, maintaining consistency in the application of tax regulations and benefit provisions.