2017 (7) TMI 300 - AT - Service Tax

Refund claim - rejection on the ground that at the time of export of goods, the appellant was entitled for the benefit of exemption N/N. 17/2008-ST dated 01.04.2008 whereas, they have filed refund claim under the benefit of exemption N/N. 33/08-ST dated 07.12.2008, therefore, the refund claim is not admissible - Held that - similar issue came up before this Tribunal in the case of ABG Shipyard ltd. 2011 (8) TMI 363 - CESTAT AHMEDABAD , wherein this Tribunal has held that It is undisputed fact that the service tax stands paid by the respondent, has been admitted by the department as tax liability on the commission paid by the assessee, the non-mentioning of such commission amount in the shipping bill in any way, will not come in the way for granting of refund to the assessee, in terms of the N/N. 17/2008 - at the time of filing the refund claim, the notification which is in force is available to the appellant to claim refund of tax paid on the services which were received by the appellant for export of goods - refund allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection based on incorrect exemption notification used.

Analysis:
The appellant appealed against the rejection of their refund claim due to using the wrong exemption notification during the export of goods. The Tribunal considered a similar case involving service tax on commission paid for export orders. The issue revolved around whether the appellant was eligible for the benefit of a specific exemption notification. The Tribunal analyzed the relevant notification and observed that the appellant had paid service tax as a recipient of services for the exported goods. The Tribunal referred to Notification No. 17/2008-S.T. and its subsequent amendment by Notification No. 33/2008, which affected the admissibility of refunds based on the FOB value of exports or actual commission paid. The Tribunal noted that the appellant had paid service tax post-amendment, making them eligible for a refund. The Tribunal emphasized that there was no bar on claiming refunds for services rendered before the notification amendment. The Tribunal also cited a precedent from the Hon'ble High Court of Mumbai to support the appellant's case.

The Tribunal addressed the contention raised by the Departmental Representative regarding the absence of commission amount on the shipping bill. Despite this, the Tribunal upheld that the payment of service tax by the appellant was acknowledged, and the absence of commission details on the shipping bill did not hinder the refund eligibility under Notification No. 17/2008. Consequently, the Tribunal found no merit in the Revenue's appeal and upheld the correctness and legality of the Commissioner (Appeals)'s decision. The appeal was rejected, and the impugned order was set aside in favor of the appellant, allowing the appeal with consequential relief.

In conclusion, the Tribunal ruled in favor of the appellant, overturning the refund claim rejection based on the incorrect exemption notification used during the export of goods. The judgment highlighted the eligibility criteria under the relevant notifications and emphasized the admissibility of refunds post-amendment, ultimately granting the appellant the relief sought in the appeal.