2012 (5) TMI 289 - AT - Service Tax

Refund claim of service tax - Notification No. 09/2009-S.T dated 03.03.2009 - appellant is SEZ status holder for generation of electrical energy - held that - the only requirement for claiming refund is that service tax on the services should have been paid on or after 03.03.2009. It is immaterial when the services had been rendered. In other words, even if the services were rendered prior to 03.03.2009 but the recipient has paid the service tax on or after 3.3.2009, he can avail service tax refund as provided for in the Notification. Therefore, the argument of the department that the service tax refund will be available only for the services rendered on or after 03.03.2009 does not appear to have any legal basis. - Decided in favor of assessee. Services outside SEZ unit - held that - any service rendered to a SEZ unit in an export and, therefore, the procedure prescribed by the Board in Circular dated 19.01.2010 in respect of exports can be reasonably applied to the case under consideration and there is nothing wrong in the Assistant Collector adopting the same procedure. In any case, it is an internal matter of the department how they should verify the eligibility to the refund claim. In the instant case, the refund sanctioning authority has directed the appellant to produce the C.A certificate and on that basis he has sanctioned the refund. The appellant herein cannot be faulted for following the procedure directed by the refund sanctioning authority. - Decided in favor of assessee.

Issues Involved:
1. Admissibility of refund claim for services received prior to March 2009.
2. Time-barred refund claims.
3. Invoices without Service Tax Registration No. or address of the service provider.
4. Correlation of input services with authorized operations in SEZ.
5. Submission of original invoices.
6. Double claim of service tax on some invoices.
7. Requirement of Chartered Accountant's certificate for usage in SEZ operations.

Detailed Analysis:

1. Admissibility of refund claim for services received prior to March 2009:
The appellant claimed a refund for services received before March 2009 but paid for after March 2009. The appellate authority initially rejected this claim based on Notification No. 09/2009-ST dated 03.03.2009. However, it was argued that the exemption applied to services paid for on or after 03.03.2009, regardless of when the services were rendered. The tribunal concluded that the timing of the service payment, not the service provision, was crucial, thus rejecting the department's argument and allowing the refund.

2. Time-barred refund claims:
The refund claim was partially rejected as time-barred, exceeding the six-month limit after service tax payment. The tribunal upheld that the refund claims must adhere to the stipulated timeframe, emphasizing the importance of timely submission for eligibility.

3. Invoices without Service Tax Registration No. or address of the service provider:
Some invoices lacked essential details like Service Tax Registration No. or the service provider's address. The tribunal did not explicitly address this issue in the judgment, implying that the primary focus was on the broader eligibility criteria rather than procedural lapses in documentation.

4. Correlation of input services with authorized operations in SEZ:
The department argued that some services could not be correlated with authorized SEZ operations. The appellant countered that the services were approved by the Development Commissioner and used in authorized operations. The tribunal agreed with the appellant, noting that the services were indeed utilized in authorized operations and approved by the relevant authority, thus eligible for a refund.

5. Submission of original invoices:
The rejection of refund claims due to the non-submission of original invoices was not directly addressed. However, the tribunal's overall decision to allow the refund suggests that this procedural requirement was either fulfilled or deemed non-critical in this context.

6. Double claim of service tax on some invoices:
The tribunal did not find substantial evidence or argumentation regarding double claims of service tax, focusing instead on the broader eligibility and approval issues. Thus, this ground for rejection was implicitly dismissed.

7. Requirement of Chartered Accountant's certificate for usage in SEZ operations:
The department contended that the Deputy Commissioner should have verified the actual use of services instead of relying solely on the Chartered Accountant's certificate. The tribunal referred to the Board's circular dated 19.01.2010, which allowed for such certification. It concluded that the reliance on the Chartered Accountant's certificate was appropriate and in line with procedural guidelines, thereby validating the refund claims based on these certificates.

Conclusion:
The tribunal allowed the appeal, emphasizing that the appellant met the necessary conditions for refund claims as per Notification No. 09/2009-ST. The tribunal dismissed the department's objections regarding the timing of service provision, the place of service receipt, and the reliance on Chartered Accountant's certificates, thereby granting the appellant the refund with consequential relief.

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