2014 (9) TMI 747 - AT - Service Tax

Refund of Service Tax - export of services - effective date of Notification No. 5/2006, dated 14-3-2006 - Prospective effect or retrospective effect - whether the refund claim should be regulated in accordance with Section 11B or not - Held that - the matter as to whether the refund claim should be regulated in accordance with Section 11B or not is required to be considered in detail and since in any case the matter has to go back to the original adjudicating authority for sanctioning the eligible amount of refund as per the ratio of the decision of this Tribunal, I feel that it would be appropriate to leave this issue as to whether Section 11B provisions would be applicable for the purpose of limitation to the refund claim or not can be left to the original adjudicating authority for a decision after considering all the submissions that may be made before him and relevant statutory provisions as well as the precedent decisions in favour as well as against the Revenue. Relevant date u/s 11AB - date of export or otherwise - Held that - During the relevant period for which the refund claim relates, the service tax was leviable only when consideration was received. If the service was taxable during the time limit so rendered, date on which the service was to be taxed, cannot be the date of rendering service. Under these circumstances, the best approach and correct approach would be the one where we take the date of service as the date on which consideration is received whether it is part or full or advance. That being the position, for the purpose of calculation of date of export, in this case, in my opinion, the date on which consideration was received can form the basis. Whether the input services in respect of which credit had been denied by the Commissioner are to be held as eligible or not - Held that - On going through the list of services given therein and the logic adopted in that order and considering the services which are listed in paragraph 9 reproduced above, I consider that all the services which are in dispute in this case can be considered as input services for the purpose of refund. In the result the appeal is allowed in terms of the ratios discussed above and matter is remanded to the original adjudicating authority for considering the refund claim in terms of the observations in this order - matter remanded back - Decided in favour of assessee.

Summary

Issues Involved:
Eligibility of the appellant for the refund of Service Tax paid on various services utilized in respect of output service exported under Notification No. 5/2006; Incorrect form used for filing the refund; Eligibility of refund claim for the period prior to 14-3-2006; Applicability of limitation under Section 11B to the refund claim under Notification No. 5/2006; Determination of the date of export; Eligibility of input services for which credit had been denied by the Commissioner.

Analysis:

1. Eligibility for Refund of Service Tax:
The issue revolved around the eligibility of the appellant for the refund of Service Tax paid on services utilized for the exported output service under Notification No. 5/2006. The refund claim was initially rejected by the Assistant Commissioner on procedural grounds but was later remanded by the appellate authority for fresh consideration. The Tribunal analyzed the issue and allowed the appeal, remanding the matter to the original adjudicating authority for further review.

2. Refund Claim for Period Prior to 14-3-2006:
The Tribunal referred to a previous case law to establish that the refund claim for the period prior to 14-3-2006 should be admissible, contrary to the Commissioner's view that it should be limited to the period after the said date. The Tribunal held that the refund claim should not be limited to exports made after 14-3-2006, as the relevant rule did not specify such a limitation.

3. Applicability of Limitation under Section 11B:
The issue of whether the limitation under Section 11B would be applicable to the refund claim under Notification No. 5/2006 was discussed. The Tribunal noted conflicting views from different High Courts and decided to leave this issue to the original adjudicating authority for a detailed consideration, considering relevant statutory provisions and precedent decisions.

4. Determination of Date of Export:
The Tribunal deliberated on the date of export concerning the refund claim, emphasizing that the date of service should be considered as the date on which consideration is received. This approach was deemed appropriate, and the original adjudicating authority was directed to follow this decision unless there is a contrary precedent decision from a higher judicial forum.

5. Eligibility of Input Services:
The Tribunal reviewed the input services for which credit had been denied by the Commissioner. After considering relevant precedents and the nature of the services in dispute, the Tribunal concluded that all the services in question could be considered as 'input services' for the purpose of refund. The appeal was allowed, and the matter was remanded for further consideration by the original adjudicating authority.

In conclusion, the Tribunal addressed various issues related to the eligibility of the appellant for a refund of Service Tax paid on exported services, the applicability of limitations, determination of the date of export, and the eligibility of input services. The decision provided clarity on these matters and directed further review by the original adjudicating authority.