2014 (10) TMI 164 - AT - Service Tax

Denial of refund claim - Export of services - Period of limitation - claim filed with one year after date of payment of belated service tax - Business Auxiliary Service - CENVAT credit - Held that - provisions contained in Section 11B of the Central Excise Act, 1944, as made applicable to the Service Tax matters are squarely applicable in this case. In this case the applicant had paid the Service Tax on the services which qualifies as Export of Service and the payments were made both in Cash as well as by way of debit of CENVAT Credit A/c. The cash payments were made much beyond the due date of payment of Service Tax. The said claim was filed within one year from the date of payment of tax, but after the expiry of one year from the due date of payment of tax. The Original Adjudicating Authority found that the payment from CENVAT Credit was deemed to be made on the due date of payment of tax, hence the claim is barred by limitation to that extent. - no infirmity in the said findings. - Decided in favour of Revenue.

Summary

Issues:
1. Whether the appellant's activities amount to export of services or fall under Business Auxiliary Services.
2. Whether the refund claim for service tax paid in cash and through CENVAT credit is admissible.
3. Whether the part of the refund claim is barred by limitation.

Analysis:
1. The appellant provided marketing services to a foreign principal and initially paid service tax treating it as Business Auxiliary Services. Later, they claimed it as export of services. The original authority rejected the refund, but the Commissioner (Appeals) allowed a partial refund. The Tribunal cited precedents supporting export of services, dismissing Revenue's appeal against the refund.

2. The Commissioner (Appeals) allowed a refund for cash payments but rejected the CENVAT credit refund partly due to limitation. The Tribunal upheld the limitation citing Section 11B of the Central Excise Act, stating the CENVAT credit payment was beyond the due date. The decision on limitation was final, and the matter was remanded for calculating the amount outside the limitation period.

3. The Tribunal emphasized the applicability of Section 11B for service tax matters, rejecting the argument that the refund should be treated as a mere deposit exempt from limitation. The Tribunal remanded the case for a fresh decision on the amount outside the limitation period, considering the observations made. The appeal was disposed of accordingly, respecting the High Court's decision and not delving into all decisions cited by the respondent.