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2015 (10) TMI 2212 - AT - Service TaxDenial of refund claim - Notification No.41/2007-ST dated 6.10.2007 - Held that - Notification No.41/207-ST authorises refund of service tax paid on the value of inputs for goods exported subject to ceiling of 2% on the FOB value, in respect of BAS. Review Commissioners as well as sole ground of appeal by Revenue proceeds on the premise that the assessee had paid service tax on 3% of the FOB value of export goods (in excess of ceiling limit prescribed in Notification NO.41/2007-ST). Neither in the show cause notice, the primary adjudication order, the impugned order of the ld. Appellate Commissioner nor in the order of the Review Commissioner or even the memorandum of appeal is there brought out a scintilla of material/evidence/documentary substantiation for the factual assertion (recorded for the first time in this appeal) to support Revenues assertion that assessee had paid service tax on 3% of the FOB value of exported goods. This factual assertion in the grounds of appeal is unsubstantiated by any probative material which enables a finding of fact to be recorded by the Tribunal. - Decided against Revenue.
Issues:
Refund claim under Notification No.41/2007-ST for service tax paid on specified services used for export of goods. Analysis: The appellant, an exporter of goods, filed a refund claim for service tax paid on various specified services used for export of goods. The claim was scrutinized, and a show cause notice was issued proposing to disallow the refund due to inconsistencies with the conditions of Notification No.41/2007-ST. The Assistant Commissioner rejected the refund claim citing reasons. The assessee appealed, and the Commissioner (Appeals) allowed the refund claim on the commission paid to foreign commission agents, which had suffered service tax under Business Auxiliary Service (BAS). The appellate Commissioner found evidence supporting the payment of commission and service tax. The Revenue's appeal was based on the argument that the refund granted was contrary to the terms of the notification as the assessee had paid service tax on 3% of the FOB value of exported goods, exceeding the ceiling limit of 2% set by the notification. However, the Tribunal noted that this assertion lacked substantiation in any previous orders or documents, rendering it unsupported by evidence. The Tribunal found that there was no material or evidence to support the Revenue's claim that the assessee had paid service tax on 3% of the FOB value of exported goods, as alleged for the first time in the appeal. The grounds of appeal lacked probative material to enable a finding of fact to be established by the Tribunal. As a result, the appeal by Revenue was deemed without merit and dismissed. The Tribunal concluded that the appeal lacked substance and was therefore dismissed without costs.
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