2017 (7) TMI 1128 - AT - Service Tax

Refund of CENVAT credit - export of services - denial of refund paid as service tax to providers of input services used in rendering scientific and technical consultancy service to recipients outside India - denial of refund as held to be ineligible while some others could not be linked to the output services that were exported leading to disallowance of claim - place of provision of service - Held that - An identical dispute had been decided by this Tribunal in Commissioner of Central Excise Pune - I v. Sai Life Sciences Ltd 2016 (2) TMI 724 - CESTAT MUMBAI where it was held that the benefit of the service accrued to the foreign clients outside the Indian territory by no stretch of imagination can it be said that there was no export of service - refund to be allowed. Challenge to sanctioned amount in review proceedings - no SCN issued - whether it was legal and proper for the appellate authority to hold to the detriment of an assessee by recourse to a belated and indirect notice in the form of an appeal by Revenue? - Held that - The statute does not specifically provide for enhancement of refund beyond that was claimed but specifies that there is scope for enhancement of that which was restricted subject to sufficient cause being shown to the respondent. This would presume that the enhancement detriment in appeal is limited to the show cause notice with which the proceedings leading to the appeal commenced. Such a show cause notice has not been issued in the present instance. The proper course of action for Revenue to dispute the sanction of refund claim by the original authority should have been the issue of a notice under section 73(1) of Finance Act 1994. The failure to issue such a notice stultifies the present proceedings before the first appellate authority. The impugned order fails to meet the requirement of the statute and is consequently set aside. Appeal allowed.

Summary

Issues involved:
Disallowance of refund under rule 5 of CENVAT Credit Rules, 2004; Interpretation of Place of Provision of Service Rules, 2012; Jurisdiction of first appellate authority to enhance refund claim without issuing a show cause notice under section 73(1) of Finance Act, 1994.

Analysis:

1. The dispute in this case revolves around the disallowance of a refund under rule 5 of the CENVAT Credit Rules, 2004, despite being sanctioned by the original authority for a company providing 'scientific and technical consultancy service' to recipients outside India. The appellant had claimed a refund of a specific amount paid as service tax, but part of the claim was held ineligible, leading to a disallowance of a portion of the refund. The Revenue filed an appeal against the order of sanction, resulting in the entire claim being disallowed due to non-conformity with rule 6A of the Service Tax Rules, 1994, prompting the appeal by the assessee.

2. The arguments presented by the Learned Counsel for the appellant focused on a similar dispute previously decided by the Tribunal, citing the case law Commissioner of Central Excise, Pune - I v. Sai Life Sciences Ltd. The contention between the Revenue and the assessee centered on the place of provision of service, with the Revenue arguing that the service was not provided outside India. The first appellate authority concluded that the agreement between the service recipient and the appellant necessitated the application of specific rules, contrary to the appellant's interpretation.

3. The Tribunal, referring to its decision in the Sai Life Sciences case, found the impugned order to be incorrect based on identical circumstances. Additionally, the Tribunal highlighted the procedural irregularities in the appeal process initiated by the Revenue without issuing a show cause notice, questioning the legality and propriety of the first appellate authority's decision to disallow the refund without proper justification.

4. The judgment delves into the jurisdictional aspects concerning the authority of the first appellate authority to enhance a refund claim without issuing a show cause notice under section 73(1) of the Finance Act, 1994. It emphasizes that the proper recourse for the Revenue to dispute a sanctioned refund claim should have been through the issuance of a notice under the relevant section. The failure to follow this procedure was deemed to invalidate the proceedings before the first appellate authority, leading to the setting aside of the impugned order.

5. Ultimately, the Tribunal allowed the appeal, setting aside the impugned order due to the failure to meet statutory requirements and procedural irregularities. The judgment underscores the importance of adhering to legal procedures and jurisdictional boundaries in matters concerning the disallowance of refunds and the appellate process under the Finance Act, 1994.