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2017 (5) TMI 103 - AT - Service TaxRefund claim - commission to foreign agents outside India - Terminal Handling Charges - denial on the ground that prior to 07.07.2009, the N/N. 41/2007 did not specify the Terminal Handling Charges - Held that - the issue of refund has been decided by this Tribunal in the case of Narhar Fibres Vs. C.C.E. Chandigarh-I 2013 (12) TMI 330 - CESTAT NEW DELHI , where it was held that by N/N. 17/2009-S.T., dated 7-7-2009 the Government issued further exemptions, exempting taxable services enumerated in the table, received by an exporter of goods and used for export of goods from the whole of the Service Tax leviable thereon; this Notification enumerates a broad category exemption for any service classified in Section 65(105) when the payment of Service Tax is for a service mainly known as terminal handling charges - the order of the Ld. Commissioner (Appeals) in relation to refund on Terminal Handling Charges is not sustainable and is set aside - appeal allowed. Refund claim - commission to foreign agents outside India - denial on the ground that the Service Tax was not deposited till the time of filing of refund claim due to non remittance of commission to foreign agents outside India - Held that - the Service Tax has been paid on the commission paid to the foreign agents after filing of the refund claim with the proper officer. From the copy of the Adjudication Order dt. 24.02.2010 passed by Deputy Commissioner, Ludhiana, it appears that the Department has been sanctioning the refunds in the case of Overseas Commission Agents after deposit of the Service Tax subsequent to the filing of the refund claim - the refund claim along with proof of payment of service tax by appellant in the form of GAR 7s challans needs to be re-examined and verified with invoice wise details by the Adjudicating Authority - matter on remand. Appeal allowed - part matter decided in favor of appellant and part matter on remand.
Issues:
1. Refund claim rejection on Terminal Handling Charges. 2. Refund claim rejection on Service Tax for commission paid to foreign agents. Issue 1: The appellant filed a refund claim for &8377; 2,70,103, out of which &8377; 1,51,087 was sanctioned, and the remaining &8377; 1,19,016 was rejected. The rejection was based on Terminal Handling Charges not specified in Notification No. 41/2007 before 07.07.2009. The Tribunal cited precedents to support the admissibility of such charges for export-related services. The order of the Ld. Commissioner (Appeals) rejecting the refund on Terminal Handling Charges was set aside. Issue 2: The rejection of the refund claim for Service Tax on commission paid to foreign agents was based on non-payment at the time of filing the claim. The appellant argued that the delay was due to the nature of the transaction. The Tribunal noted that the Department had sanctioned refunds post-payment in similar cases. The matter was remanded for verification of Service Tax payment evidence, allowing the appellant to present their case. The Tribunal directed a fresh adjudication in accordance with the law. The appeal was disposed of with the rejection of the refund on commission remanded for de novo adjudication.
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