2015 (3) TMI 742 - AT - Service Tax

Denial of refund claim - refund claims were rejected by the lower authorities on the ground that the appellant had claimed excess refund of the service tax paid by commission agent - Held that - On a perusal of Notification no. 33/2008-ST we find that the said notification does not indicate that the words ten percent shall be effective in the Notification 41/2007-ST from the date when it was issued. Secondly, we find that the benefit which has been sought to be given to the appellant is in respect of the exports which were made prior to the Notification came into existence, which in the case in hand, were eligible as per notification 41/2007-ST. In our considered view, the benefit of Notification no. 33/2008 can be claimed by the appellant from 07/12/2008 which is not in dispute as the Revenue has granted the said benefit to the appellant.- benefit of Notification no. 41/2007-ST was already in existence and was granted to the appellant and benefit of Notification 33/2008 was also granted to the appellant as on the date when it was enacted. - impugned order of the first appellate authority is correct and legal and does not require interference - Decided against assessee.

Summary

Issues:
- Eligibility of appellant for claiming refund of service tax paid on commission to commission agents at 10% of FOB value for Oct-Dec 2008.
- Interpretation of Notification no. 33/2008-ST and its applicability to refund claims.
- Comparison of benefits under Notification no. 41/2007-ST and Notification no. 33/2008-ST.
- Relevance of Circular no. 112/6/2009-ST in extending the period for filing refund claims.

Analysis:
1. Eligibility for Refund Claim: The appellant filed refund claims for service tax paid on commission agents for Oct-Dec 2008 under Notification no. 41/2007-ST as amended by Notification no. 33/2008-ST. The lower authorities rejected the claims citing excess refund. The appellant argued for claiming 10% of FOB value or actual service tax paid, per Notification no. 33/2008, applicable from 07/12/2008. However, the Tribunal found the benefit could only be claimed from 07/12/2008, not for the entire period, as the exports were eligible under Notification no. 41/2007-ST before the new notification came into effect.

2. Interpretation of Notifications: The Tribunal analyzed Notification no. 33/2008-ST and observed that it did not specify the retrospective application of "ten percent" to Notification no. 41/2007-ST. It concluded that the benefit of the new notification could only be availed from its effective date, i.e., 07/12/2008. The Tribunal emphasized that the appellant was already granted the benefit under the existing notification and later under the new notification, aligning with the Revenue's decision.

3. Legal Precedent and Circular: The appellant relied on the Supreme Court judgment in a different case, which was deemed inapplicable by the Tribunal. The Tribunal distinguished the circumstances, stating that the benefits under both notifications were granted to the appellant as per the law. Moreover, the appellant's reference to Circular no. 112/6/2009-ST, extending the period for filing refund claims, did not alter the Tribunal's decision regarding the specific benefit claim under the notifications.

4. Conclusion: After considering submissions from both sides, the Tribunal upheld the lower authority's decision, deeming it correct and legally sound. The appeal for claiming refund at 10% of FOB value for the entire period was rejected. The Tribunal's analysis focused on the specific provisions of the notifications and their application to the appellant's refund claims, ensuring compliance with the law and established precedents.