2015 (9) TMI 1620 - AT - Service Tax

Refund of service tax paid - services which was utilized for export of the goods - case of the Revenue is that the service under section 65 (105) (zzn) is for the port services and the service provider has not discharged the service tax under this category - whether the service tax paid by the service providers on Terminal Handling Charges are eligible for refund under notification no. 41/2007-ST or otherwise? - Held that - The issue is no more res-integra as Hon ble High Court of Gujarat in the case of Commissioner of Central Excise AIA Engineering Pvt. Ltd. 2015 (1) TMI 1044 - GUJARAT HIGH COURT has, on a question of law on the same issue, held that Exemption Notification No. 17/2009-S.T., provided total exemption from payment of Service Tax paid on services commonly known as terminal handling charges. Such exemption was available for service classified under sub-clause (zn) of Clause 105 of Section 65 of the Finance Act, 1994 - refund allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim of service tax paid on various services for export, eligibility for refund under notification no. 41/2007-ST, interpretation of taxable services under Section 65(105)(zzn), applicability of exemption notifications for terminal handling charges, and consistency in service tax collection.

Analysis:
The case involved two appeals challenging Order-in-Appeal No. SB(62-63)/JTC/2010 dated 3.6.2010, concerning refund claims for service tax paid on different services utilized for export. The adjudicating authority rejected certain refund claims, citing the appellant's benefit of drawback and ineligibility under notification no. 41/2007-ST. However, the first appellate authority allowed some refund claims while rejecting others, leading to the current appeal. Notably, the Revenue did not appeal the first appellate authority's decision, focusing the issue on the eligibility of service tax paid on Terminal Handling Charges under notification no. 41/2007-ST.

The central issue revolved around the interpretation of taxable services under Section 65(105)(zzn) for refund eligibility. Both lower authorities erroneously concluded that service tax paid under "Cargo Handling Services" was not covered for refund under notification no. 41/2007-ST. However, the Appellate Tribunal disagreed, citing a High Court precedent that clarified the scope of taxable services under Section 65(105)(zzn). The Tribunal emphasized that the service provider's payment of service tax under the relevant category was crucial for refund eligibility, ultimately setting aside the impugned order and allowing the appeal partially.

The Tribunal's decision was influenced by the application of exemption notifications, particularly Notification No. 17/2009-S.T., which provided total exemption from service tax on terminal handling charges under Section 65(105)(zzn). The Tribunal referenced previous decisions and subsequent notifications to establish the evolution of exemption provisions and the importance of consistent tax collection practices. Despite some contention from the department, the Tribunal found no legal basis to reject the appellant's refund claim, emphasizing the significance of adhering to the provisions of relevant notifications and tax collection practices.

In conclusion, the Tribunal held that the impugned order was liable to be set aside based on the clarified interpretation of taxable services and exemption notifications. The appeal was allowed to the extent contested, with the Tribunal providing consequential relief as necessary. The decision underscored the importance of consistent tax collection practices and adherence to statutory provisions for refund eligibility, ultimately resolving the issue in favor of the appellant.