2014 (12) TMI 85 - AT - Service Tax

Denial of refund claim - SEZ unit - Refund filed under Notification No. 41/2012-ST dated 29.06.2012 and notification no.52/2011-ST dated 31.12.2011 instead of Notification No.40/2012-ST dated 20.06.2012 - Held that - Appellant have filed the refund claim under Notification no.41/2012-ST dated 29.06.2012/52/2012-ST dated 31.12.2011 the applicable notification is Notification no.40/2012-ST dated 20.06.2012 which is applicable in respect of the SEZ units and which provides for refund of the service tax paid on the services received by a SEZ unit or SEZ developer for use in or in relation to the authorized operations. Just because the appellant have mentioned the wrong exemption notification in their refund claim the same cannot be rejected and as such their refund claim must be considered in terms of the Notification no.40/2012-ST. The notification no.40/2012-ST is subject to certain conditions and according to the department these conditions have not been fulfilled and that a letter dated 23.04.2013 mentioning the deficiencies had been issued to the appellant but there was no response from the appellant. The appellant s plea is that this letter was never received by them - Therefore matter remanded back - Decided in favour of assessee.

Summary

Issues:
Refund claim under Notification no.40/2012-ST rejected due to mentioning wrong exemption notifications in the claim.

Analysis:
The appellant, a manufacturer exporter in a SEZ unit, filed a refund claim of &8377; 1,32,672/- for service tax paid on services received during April to December 2012. The claim was filed under Notification no.41/2012-ST and Notification no.52/2011-ST instead of the correct Notification no.40/2012-ST applicable to SEZ units. The Asstt. Commissioner rejected the claim citing non-fulfillment of conditions and lack of necessary documents. The appellant's appeal before the Commissioner (Appeals) was dismissed due to non-furnishing of mandatory documents and failure to respond to deficiencies communicated earlier.

The appellant argued that despite mentioning the wrong notifications, their claim should not be rejected as it was for services used in authorized operations refundable under Notification no.40/2012-ST. They claimed the order violated natural justice principles by not considering their defense submissions. The appellant requested a remand for a fresh decision after presenting evidence to satisfy the exemption notification conditions.

The Departmental Representative defended the rejection, stating the appellant did not meet the conditions of Notification no.41/2012-ST. The Tribunal noted the error in the mentioned notifications and directed consideration of the claim under Notification no.40/2012-ST applicable to SEZ units for service tax refund on services used in authorized operations.

Although the department alleged deficiencies were communicated to the appellant, the appellant claimed non-receipt of such communication. The Tribunal found the appellant's request for remand reasonable, setting aside the impugned order and remanding the matter for a fresh decision by the original adjudicating authority after hearing the appellant's defense on satisfying the conditions of Notification no.40/2012-ST. The appeal was disposed of accordingly.