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2013 (2) TMI 329 - Commissioner - Service TaxNotification No. 41/2007 Whether the appellants are entitled for refund as per the Notification No. 41/2007-S.T., dated 6-10-2007 Assessee filed refund claims under Notification No. 41/2007, dated 6-10-2007 as amended on commission paid to foreign commission agents. Exports were made under Drawback Scheme and DEPB Scheme and for the export made under Drawback Scheme, it was duly indicated by the Custom Department for the entitlement of Drawback in the shipping bills foreign sales commission being considered as input service Held that - Service tax paid on foreign commission has not been factored in computation of All industry rate of drawback prior to 2007 or after 2007 and that there services are not input services but are services linked to exports. Further Notification No. 33/2008, dated 7-12-2008 amended Notification No. 41/2007-S.T., dated 6-10-2007 omitted the clause (e) the said goods have been exported without availing drawback of service tax paid on the specified services under the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 However 2% FOB value was increased to 10% of FOB value as per amended Notification 33/2008 dated 7-12-2008. In this case refund claims were filed before the date of said amendment and hence the restriction of 2% of FOB value by the Lower Adjudicating Authority needs no interference. Therefore the stand taken by the Lower Adjudicating Authority in rejecting the refund claims on the export made under Drawback Scheme founds to be not sustainable In favour of assessee.
Issues:
1. Whether the appellants are entitled to a refund under Notification No. 41/2007 for service tax paid on commission to foreign agents. 2. Whether the commission paid to foreign agents qualifies as an input service under the Drawback Rules. 3. Whether the appellants are eligible for refund based on the conditions specified in the Notifications. 4. Whether the refund amount should be restricted to 2% or 10% of the FOB value based on the date of filing the refund claims. Analysis: Issue 1: Entitlement to Refund under Notification No. 41/2007 The appellants filed refund claims under Notification No. 41/2007 for service tax paid on commission to foreign agents. The Lower Adjudicating Authority rejected the claims, citing that the appellants had already claimed rebate under the Customs, Central Excise, and Service Tax Drawback Rules, 1995. The Commissioner reviewed the records and found that the appellants were indeed eligible for the refund as the condition regarding availing drawback under the said rules was omitted by an amended Notification in 2008. Issue 2: Qualification of Commission as Input Service The appellants argued that the commission paid to foreign agents should not be considered a sales promotion expense and, therefore, not an input service as per the relevant rules. The Director of Drawback confirmed that the service tax paid on foreign agency commission was not factored into the Drawback Shipping Bills. The Commissioner agreed with this stance, emphasizing that the services provided by foreign commission agents were not input services but rather services linked to exports. Issue 3: Eligibility for Refund based on Notification Conditions The Commissioner noted that the amended Notification in 2008 removed the condition of availing drawback on service tax paid on specified services under the relevant rules. This change supported the appellants' claim for a refund on exports made under Drawback shipping bills. The Commissioner held that the appellants were entitled to the refund amounts claimed under the Notification. Issue 4: Refund Amount Calculation The refund amount was initially restricted to 2% of the FOB value by the Lower Adjudicating Authority. However, an amended Notification in 2008 increased this limit to 10% of the FOB value. The Commissioner determined that the restriction of 2% for claims filed before the amendment date was appropriate. For claims filed after the amendment, the appellants were entitled to 10% of the FOB value as a refund. In conclusion, the Commissioner allowed the appeals, setting aside the impugned orders and granting the appellants the denied refund of the service tax paid on foreign commission for exports made under Drawback Shipping bills.
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