2016 (7) TMI 780 - AT - Service Tax

Refund of service tax paid on BAS services - commission paid to foreign agents for the taxable service of business auxiliary services availed for export of goods - Refund claim was rejected on the ground taht, appellant had not complied with or fulfilled any of the conditions prescribed under the applicable Notification No. 18/2009-ST, dated 07-07-2009 and instead had claimed refund under Notification No.17/2009-ST which was not at all applicable in respect of the BAS provided by foreign agents. Held that - The procedures prescribed in the notification are to facilitate verification of the claims. Since there is no dispute with regard to the export made or the service tax paid, the non-fulfilment of the conditions in my view is condonable. - the non-fulfilment of the conditions is only a procedural lapse and can be condoned. - Refund allowed

Summary

Issues:
Refund claim under Notification No.41/2007-ST vs. Notification No.18/2009-ST for service tax on commission paid to foreign agents for business auxiliary services availed for export of goods. Non-compliance with conditions of Notification No.18/2009-ST. Eligibility for refund.

Analysis:
The appellants, manufacturers of granite slabs, filed a refund claim for service tax paid on commission to foreign agents for business auxiliary services used for exporting goods from January to March 2010. The original authority rejected the claim as the goods were exported after the introduction of Notification No.18/2009-ST, and the appellants did not fulfill the conditions under this notification. The Commissioner (Appeals) upheld the rejection. The appellants argued that they complied with all conditions except intimating the Asst/Dy.Commissioner and filing returns every six months, which they deemed as procedural lapses. The AR contended that strict compliance with Notification No.18/2009-ST is required for eligibility for refund.

The Tribunal considered the grievance that the service tax was paid on exempted services under Notification No.18/2009-ST, and the goods were actually exported. The conditions under the notification included informing the Commissioner, registration with an Export Promotion Council, filing returns every six months, and submitting required documents. The appellants failed to intimate the Commissioner and submit returns as per the notification. The Tribunal noted that export-oriented schemes should not deny refunds based on technical interpretations. Citing legal precedents, the Tribunal held that procedural lapses can be condoned if export and tax payment are not in dispute. Therefore, the Tribunal held that the non-fulfillment of conditions was a procedural lapse and granted the appellants eligibility for refund.

In conclusion, the Tribunal allowed the appeal, providing consequential reliefs. The judgment emphasized the importance of not restricting beneficial provisions through undue technical interpretations and condoned the procedural lapses in compliance with Notification No.18/2009-ST, affirming the appellants' eligibility for refund.