2016 (5) TMI 194 - AT - Service Tax

Admissibility of refund claim - Notification No.41/2007-ST - CHA services - Period involved is January, 2008 to March, 2008 - Revenue pointed out that during the relevant period CHA service was not specified under Notification - Held that - during the relevant period, CHA service was not specified under the said Notification and therefore, the refund in respect thereof is clearly inadmissible. Admissibility of refund claim - Notification No.41/2007-ST - terminal handling charges, documentation charges and on goods transport by road service - Held that - there is force in the contention of the appellant that the judgment of CESTAT in the case of SRF Ltd. Vs. Commissioner of Central Excise, Jaipur-I 2015 (9) TMI 1281 - CESTAT NEW DELHI , Commissioner of Central Excise vs. AIA Engineering Pvt. Ltd. 2015 (1) TMI 1044 - GUJARAT HIGH COURT and M/s. Ramdev Food Products Pvt. Ltd. Vs. CCE, Ahmedabad 2011 (3) TMI 1256 - CESTAT, AHMEDABAD would cover the issue in the appellant s favour with regard to the remaining services. The exports were made claiming drawback under All Industry rates. While fixing these rates, Govt. takes into account the inputs and input services used in relation to export goods. As the place of removal in respect of export goods is port of shipment, the services mentioned above would qualify to be input services. Consequently the impugned refund is hit by the said proviso. The said proviso was deleted vide Notification No.33/08-ST dated 07.12.2008. Thus, during the relevant period this proviso was very much applicable. We are unable to agree with the contention of ld. Advocate that Notification No.33/2008-ST dated 07.12.2008 in terms of which inter alia the said proviso (e) was deleted should be given retrospective effect, for the simple reason that it is trite that in the absence of any express or implied provision for retrospective applicability, an amending notification only has prospective effect. - Decided against the appellant

Summary

Issues:
Refund claim rejection under Notification No.41/2007-ST for various services including CHA charges and goods transport by road service.

Analysis:
The appeal was filed against the rejection of a refund claim of Rs. 1,75,869/- under Notification No.41/2007-ST. The appellant contended that the refund was rejected for services like terminal handling charges, documentation charges, CHA charges, and goods transport by road service. The appellant relied on judgments such as SRF Ltd. Vs. Commissioner of Central Excise, AIA Engineering Pvt. Ltd. Vs. Commissioner of Central Excise, and M/s. Ramdev Food Products Pvt. Ltd., which held that the refund of service tax on such services is admissible.

The Departmental Representative (D.R.) argued that during the relevant period, CHA service was not specified under Notification No.41/2007-ST. It was also mentioned that the export of goods was done under duty drawback claim, making the refund inadmissible under the said Notification during that time. The Tribunal considered both sides' contentions.

It was found that CHA service was not specified under the Notification during the relevant period (January 2008 to March 2008), making the refund in respect of CHA service clearly inadmissible. However, for other services, the appellant's contention citing previous judgments seemed valid. Yet, it was noted that the Notification during that period had a proviso stating that goods must be exported without availing drawback of service tax paid on specified services under the Customs, Central Excise Duty, and Service Tax Drawback Rules, 1995. Since the exports claimed drawback under All Industry rates, which consider input services used in relation to export goods, the refund was affected by this proviso.

The proviso was deleted later by Notification No.33/08-ST dated 07.12.2008, but it was clarified that this deletion did not have retrospective effect. Without any provision for retrospective applicability, an amending notification only has prospective effect. Therefore, the impugned refund was not allowed due to the proviso's applicability during the relevant period. Consequently, the appeal was dismissed as no infirmity was found in the impugned order to warrant appellate intervention.