2013 (6) TMI 202 - AT - Service Tax

Refund - rejection of refund claim on the ground that amount received was treated as cum-duty value as per alternative plea in the appeal - payment of service tax under protest during investigation - held that - When the Service Tax has been paid under protest and as per invoice raised by the appellant shows that no Service Tax has been collected from their foreign clients, the appellant is entitled for refund of entire Service Tax paid by them under protest. The issue of taxability of Service Tax have been settled in favour of the appellant holding the appellant is not required to pay Service Tax. - Therefore, considering the alternate plea taken at the time of issue taxability of service has no relation while considering refund claim. Therefore, considering the alternate plea taken at the time of issue taxability of service has no relation while considering refund claim. The invoices produced before me clearly show that the appellant has not collected any Service Tax. - Refund allowed - Decided in favor of assessee.

Summary

Issues:
Refund claim disallowed by lower authorities, taxability of Service Tax, entitlement to refund claim.

Analysis:
The appellant appealed against the disallowance of a refund claim amounting to Rs. 4,24,763 by the lower authorities. The case involved the provision of services to foreign clients and receiving commission in convertible foreign exchange. The Revenue contended that the services provided in India to foreign clients were subject to Service Tax under the reverse charge mechanism. The appellant paid Rs. 4,76,754 as Service Tax under protest, which was confirmed in the adjudication order. The Commissioner (Appeals) ruled in favor of the appellant, stating that the activity qualified under the export of Service Tax Rules. The appellant filed a refund claim, which was partially granted, but a sum of Rs. 4,24,763 was retained by the adjudicating authority. The matter was further appealed to the Tribunal.

The issue raised by the learned DR was the maintainability of the appeal, arguing that the taxability of Service Tax had already been decided. However, the Single Member Bench deemed the appeal maintainable as the only question before it was the entitlement to the refund claim, with no issues of valuation or classification of Service Tax involved. The appellant presented invoices showing the commission received and argued that they had paid the Service Tax under protest. The appellant's alternate plea was that if liable for Service Tax, it should be treated as cum-service tax.

The ld. DR referred to Section 73A(2) of the Finance Act, 1994, stating that if any amount representing Service Tax is collected but not required, it should be paid to the Central Government. The Tribunal found that since the Service Tax was paid under protest and no tax was collected from foreign clients, the appellant was entitled to a refund. The Tribunal emphasized that the issue of taxability of Service Tax had already been settled in favor of the appellant. The invoices demonstrated that no Service Tax was collected, rendering the argument under Section 73A(2) unsustainable. Consequently, the Tribunal held that the appellant was entitled to a refund of Rs. 4,76,754, set aside the impugned order, and allowed the appeal with consequential relief.