2015 (7) TMI 1041 - AT - Service Tax

Denial of refund claim - Notification No. 11/2005 ST dated 19.04.2005 - Rebate claim has been filed beyond the period of one year from the date of export - Held that - appellant that they had provided promotion and marketing services to its over-seas group entity and correctness of this claim has not been examined at all. The original adjudicating authority could have asked for evidence in this regard. Instead he has chosen to simply observe that the invoice says service fee . In the case of exports, the tax is not collected and appellants have paid the tax on the same and therefore the normal rules applicable to invoices may not be applicable since it is not the case of the department that appellant is claiming CENVAT credit where there are prescribed procedures. In this case, what is required to be examined is whether tax has been paid or not and refund is admissible or not and export of services has taken place or not. Prima facie, I find that all these requirements have been fulfilled. Under the circumstances, the impugned order is set aside - Decided in favour of assessee.

Issues:
1. Rejection of refund claim on grounds of limitation and lack of evidence for payment of service tax.
2. Interpretation of relevant date for filing refund claim.
3. Examination of correctness of the claim for providing promotion and marketing services to overseas group entity.
4. Applicability of rules for invoices in case of exports where tax is not collected.

Analysis:
1. The appellant provided marketing support services to their group companies located outside India and filed a refund claim under Rule 5 of Export of Service Rules 2005 after paying service tax and interest. The original authority rejected the claim citing reasons like filing beyond one year from the date of export, lack of description of output service in invoices, and failure to establish correlation between input and output services. The appeal against this rejection was also dismissed by the Commissioner (Appeals) based on limitations and lack of evidence for service tax payment.

2. The Tribunal considered the appellant's reliance on a previous decision regarding the relevant date for filing refund claims. The Tribunal noted that the date of payment of service tax, not the date of export, is crucial. In this case, the service tax was paid on 18.03.2008, and the rebate claim was filed on 16.04.2008, within one year from the payment date. The rejection based on the date of export was deemed incorrect, as the refund claim can be made within one year from the tax payment date. The Tribunal also highlighted the need to verify the payment date of service tax for calculating limitations, as seen in a previous case.

3. The Tribunal observed that the correctness of the claim regarding providing promotion and marketing services to the overseas group entity was not adequately examined by the original adjudicating authority. The authority could have requested evidence to support this claim instead of merely noting the term "service fee" in the invoice. The Tribunal emphasized that in export cases where tax is paid, the standard invoice rules may not apply, especially when no CENVAT credit is claimed. The focus should be on whether tax payment, refund eligibility, and service exportation have occurred.

4. Considering the fulfillment of requirements like tax payment, refund eligibility, and service exportation, the Tribunal set aside the impugned order and remanded the matter to the original authority for a fresh review of the refund claim. The Tribunal directed the authority to consider the observations made and reassess the claim accordingly.

This detailed analysis of the judgment highlights the issues raised, the Tribunal's considerations, and the ultimate decision to remand the case for further review based on the legal principles discussed.

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