2014 (12) TMI 785 - AT - Service Tax

Denial of refund claim - input services used in export of goods - Renting of Immovable Property service at port - Service not notified under Notification 41/2007 - Held that - As per Section 65(82) of the Finance Act, 1994, the port service means any service rendered by a port or any person authorised by the port, in any manner, in relation to a vessel or goods. A plain reading of the above definition clarifies that in port area any service received by the appellant is to be known as port service. If the service provider has paid Service Tax under Renting of Immovable Property Service, the same will be classified service as port service availed by the appellant. Same view has been taken by this Tribunal in the case of Pratap Re-rolling P. Ltd. (2014 (9) TMI 814 - CESTAT MUMBAI) wherein this Tribunal has held that The board vide Circular No. 112/6/2009-S.T., dated 12-3-2009 has clarified that irrespective of the categorisation of the services under which the taxes have been paid, if the services received are notified in Notification 41/2007-S.T., the benefit of refund would be available. In this case the Service Tax has been paid by the service provider under the category of Renting of Immovable Property Service but the service received by the appellant qualify under port service. Therefore, relying on the decision of Pratap Re-roling P. Ltd. (2014 (9) TMI 814 - CESTAT MUMBAI), the appellant is entitled for refund claims. - Decided in favour of asessee.

Summary

Issues:
Appeal against rejection of refund claims for Service Tax paid under Renting of Immovable Property service in relation to port services.

Analysis:
The case involved the appellant, an exporter of Iron ore, appealing against the rejection of refund claims for Service Tax paid under Renting of Immovable Property service in relation to port services. The appellant availed services from various ports, including Calcutta Port Trust, where Service Tax was charged under Renting of Immovable Property service, not a notified service under Notification 41/2007. The appellant contended that the services qualified as port services under Section 65(82) of the Finance Act, 1994, and thus, they were entitled to a refund claim as per Board Circular No. 112/6/2009-S.T. The appellant cited the Tribunal's decision in Pratap Re-roling P. Ltd. to support their argument. On the contrary, the respondent argued that the services were invoiced under Renting of Immovable Property service and were not eligible for a refund claim as per Notification 41/2007. The respondent emphasized that the service provider had classified the services, and this classification could not be changed at a later stage.

The Tribunal considered both sides' submissions and analyzed the definition of port service under Section 65(82) of the Finance Act, 1994. It clarified that any service received by the appellant in the port area should be considered a port service. Even if the service provider paid Service Tax under Renting of Immovable Property service, it would be classified as a port service availed by the appellant. The Tribunal referred to the decision in Pratap Re-roling P. Ltd., where it was held that the benefit of refund would be available if the services received were notified in Notification 41/2007-S.T., irrespective of the categorization under which taxes were paid. In this case, although the Service Tax was paid under Renting of Immovable Property service, the services received by the appellant qualified as port services. Therefore, based on the precedent set in Pratap Re-roling P. Ltd., the Tribunal concluded that the appellant was entitled to refund claims. Consequently, the impugned orders were set aside, and the appeals were allowed with consequential relief.