2016 (6) TMI 279 - AT - Service Tax

Eligibility of refund claim - Terminal Handling Charges (THC) charges, bills of lading charges, origin haulage charges, repo charges - Proper invoices were not submitted and debit notes were submitted - Proof of payment of service tax on GTA Services was not submitted and description of goods is not mentioned in the invoices issued by CHA which also include other expenses - Held that - the issue stand settled in the appellant s favour by CESTAT order in the various cases. Period of limitation - Held that - it is seen that the claim was filed within 6 months of the end of quarter 01/04/2008 to 30/06/2008, and therefore, was not hit by limitation in view of the time limit extended by the Notification No. 32/2008-ST dated 18.11.2008. It is so because the time limit was extended to six months on 18.11.2008 which means that by virtue of the said notification, refund claim for quarter ending 30.06.2008 could be filed up to the end of December, 2008. Eligibility of refund claim - Cleaning activity - not covered under the Notification No. 41/2007-ST dated 01.10.2007 - Held that - it is found that the cleaning activity even if considered to be covered under Notification No. 41/07-ST as part of 65(105)(zzzd) is eligible for exemption only if the agency which provided the cleaning services is duly accredited by a competent statutory authorities and the appellant admits that it does not satisfy the said condition. Consequently, the refund pertaining to cleaning activity is not admissible. The contention of the appellant that cleaning activity is not taxable and therefore refund of Service Tax paid thereon should be given under Section 11B of Central Excise Act is not relevant and tenable because the refund claim was filed and claimed in terms of provisions of Notification No. 41/2007-ST and not under the provisions of Section 11B of Central Excise Act. - Appeal partly allowed by way of remand

Summary

Issues: Appeal against rejection of refund under Notification No. 41/2007-ST dated 01.10.2007 for various charges, non-submission of proof of payment of service tax on GTA Services, lack of proper invoices, time-barred claim, and ineligibility of cleaning activity for refund.

Analysis:
1. Refund Rejection Grounds: The appeal challenged the rejection of refund on various grounds including Terminal Handling Charges (THC), bills of lading charges, origin haulage charges, repo charges not covered under Port Services, lack of proof of service tax payment on GTA Services, absence of proper invoices, and cleaning activity not falling under the notification. The appellant cited favorable CESTAT judgments in similar cases to support their claims.

2. Time Bar Issue: The appellant argued that the claim filed for the quarter ending 30/06/2008 was within the extended time limit of 6 months as per Notification No. 32/2008-ST dated 18.11.2008, thus not time-barred. The Tribunal agreed with this argument and allowed the claim within the extended period.

3. Cleaning Activity Eligibility: The Tribunal found that the cleaning activity, though claimed to be non-taxable by the appellant, was only eligible for exemption under Notification No. 41/07-ST if the cleaning service provider was duly accredited by statutory authorities. Since the appellant did not meet this condition, the refund related to cleaning activity was deemed inadmissible.

4. Judgment and Directions: The Tribunal allowed the appeal partially, remanding the case for re-computation of the refund amount, excluding the cleaning activity component. The Primary Adjudication Authority was directed to re-calculate the refund and provide an opportunity to the appellant for any further submissions within 3 months.

In conclusion, the Tribunal upheld the refund claim for most charges except for the cleaning activity due to non-compliance with accreditation requirements. The decision highlighted the importance of meeting statutory conditions for availing exemptions under relevant notifications.