2014 (7) TMI 286 - AT - Service Tax

Review of refund claim - Denial of refund claim previously sanctioned - refund claim of the services availed by them which was not utilized as per Notification 17/09 for the period April 2009 to June 2009 - non compliance with the condition of Notification 41/07 - Held that - Tribunal has considered the Board circular no. 354/256/2009-TRU dated 1.1.2010, which provides that the Notification 17/09-ST does not bar its applicability to the exports that have taken place prior to its issuance, and therefore, the scheme prescribed under Notification 17/09 would be applicable even for such exports subject to the conditions that refund claims are filed within the stipulated period of one year and no previous refund claims have already been filed under the previous Notification. Admittedly, in the matter in hand, the appellant have filed the refund claim on 26.12.2009, after introduction of Notification 17/09. Therefore, the queries/discrepancies raised by the ld. Commissioner (Appeals) that condition of Notification 41/07 are to be complied are not required to be fulfilled by the appellant as per the decision of Havells India Ltd. (2013 (12) TMI 1332 - CESTAT NEW DELHI). Further, the appellant has produced the documentary evidence before the Adjudicating Authority towards the input service credit pertains to the refund claims have not availed by the appellant - review order set aside - refund allowed - Decided in favour of assessee.

Summary

Issues:
Review of refund claim sanctioned by Adjudication Authority based on non-compliance with Notification 41/07 conditions.

Analysis:
The appellant filed an appeal against the review order of a refund claim that was initially sanctioned by the Adjudication Authority. The appellant, an exporter, availed input services and filed a refund claim for services not utilized as per Notification 17/09 for the period of April 2009 to June 2009. The refund claim was initially approved but later reviewed, alleging non-compliance with Notification 41/07 conditions. The main allegations included lack of proof of service tax payment by the service provider, declaration of availed CENVAT credit in ARE1 return, absence of export goods description in invoices, and failure to produce relevant supporting documents.

The appellant argued that despite the refund claim relating to a period before the issuance of Notification 17/09, they were still required to fulfill its conditions based on a Tribunal decision in Havells India Ltd. The appellant clarified that while they had availed CENVAT credit on certain services, they had not done so for the services in question for the refund claim, which was verified by the Adjudicating Authority. The appellant contended that the refund claim approval should stand.

The respondent argued that during the refund claim period, Notification 41/07 was in effect, necessitating compliance with its conditions. After hearing both sides and considering the submissions, the Tribunal referred to the Havells India Ltd. case, which clarified that Notification 17/09 could apply to exports predating its issuance if refund claims were filed within the specified period and no previous claims were made under the prior Notification. Since the appellant filed the refund claim after the introduction of Notification 17/09, the Tribunal ruled that the conditions of Notification 41/07 need not be fulfilled. Additionally, the Tribunal noted that the appellant had provided documentary evidence to support their non-availment of input service credit related to the refund claims. Consequently, the Tribunal set aside the review order and upheld the refund claim sanctioned by the Adjudicating Authority, allowing the appeal in favor of the appellant.