2014 (8) TMI 378 - AT - Service Tax

Revision of refund claim - Discrepency on scrutiny of refund of service tax - Terminal Handling Charges - Held that - show-cause notice had clearly observed that service tax was paid under the category of port services by the service providers. Even though the charge was named as Terminal Handling Charges , tax liability was in fact, discharged under port services which is one of the specified services under Notification No. 41/2007-S.T., dated 6-10-2007. Without revising classification of the service at the end of service provider, denial of refund of service tax paid under the category of port service at the receiver s end is not correct. If service tax is not refunded on the ground that it was for Terminal Handling charges which is not a specified service, is not correct. In any case, Terminal Handling was not a separate service during the relevant time nor at this time. It falls under the category of port services only. Moreover, it is quite possible that Terminal Handling Charges are collected by CHA/Service Provider of the appellant and paid to persons who actually did not work. In view of the fact that Service Tax paid under the category of port services, the action taken by the Commissioner to deny service tax is not in accordance with law - impugned order is required to be set aside - Decided in favour of assessee.

Summary

Issues:
1. Refund of service tax claimed by the appellant
2. Discrepancies noticed on scrutiny of the refund
3. Grounds for issuing show cause notice
4. Commissioner's findings and observations
5. Correct classification of service under port services
6. Denial of refund and legal implications
7. Impugned order and remand to original adjudicating authority

Analysis:
The case involves a dispute over the refund of service tax amounting to Rs. 70,006/- granted to the appellant, which was scrutinized due to discrepancies. The Commissioner, under powers vested in him, issued a show cause notice citing various grounds for revising the refund order. These grounds included issues such as non-compliance with documentation requirements, incorrect classification of service providers, and lack of evidence supporting the refund claim. The proceedings culminated in the impugned order where the Commissioner found only Rs. 7,338/- to be admissible as a refund based on the invoices of one Clearing and Handling Agent (CHA).

During the hearing, it was noted that although the show cause notice raised multiple grounds for refund denial, the Commissioner only discussed the issue related to port services. The Commissioner's observation was that the amount charged under "Terminal Handling Charges" was not admissible for refund before a specific date mentioned in a notification. However, it was argued that even though the charges were named differently, the tax liability was discharged under port services, a specified service under a relevant notification. The denial of refund solely based on the nomenclature of charges was deemed incorrect, especially since Terminal Handling Charges fell under the category of port services.

The judgment emphasized that the denial of service tax refund under the category of port services was not in line with the law, as the tax was indeed paid under this specific category. The order was set aside, and the matter was remanded to the original adjudicating authority for further scrutiny of the refund claim. This decision was made to ensure a proper examination of the classification of services and adherence to legal provisions regarding service tax refunds.

In conclusion, the judgment addressed the discrepancies in the refund claim, the Commissioner's findings, the correct classification of services under port services, and the legal implications of denying a refund based on nomenclature. The decision to remand the matter for reevaluation by the original authority aimed to uphold the principles of tax law and ensure a fair and accurate determination of the refund eligibility.