2017 (7) TMI 684 - AT - Service Tax

Refund claim - N/N. 41/2007-ST dated 06.10.2007 - denial on the ground that Goods exported under claim for duty drawback, hence condition 1(e) of Notification No.41/2007-ST not satisfied - Held that - in case of availment of draw back on specified services, the refund benefit contained in the Notification dated 06.10.2007 shall not be available to the claimant. However, the said condition was deleted by the Central Govt. vide N/N. 33/2008 dated 07.12.2008. Since, in the original Notification dated 06.10.2007, it has been clearly provided that availment draw back of service tax paid on specified services should not be considered for refund under the said Notification and in absence of any ambiguity regarding interpretation of the said phrase contained in the Notification dated 06.10.2007, it cannot be said that the amending Notification dated 07.12.2008 will have the retrospective effect and should be applicable for the refund claims filed prior to 07.12.2008. Therefore, the refund claim filed for the period 01.10.2008 to 06.12.2008 will not merit consideration. Refund claim - THC Charges, bill of lading charges, original haulage charges, repo charges etc. - denial on the ground that these are not covered under Port Services as the service providers are registered under different category and proof of deposition of tax under port services not produced - Held that - it is an admitted fact on record that said services were used/ utilized by the appellant within the port of export for exportation of the goods. Thus, irrespective of the classification of service made by the service provider, the same should be considered as port service for the purpose of benefit of refund under Notification dated 06.10.2007 - the appellant should be eligible for refund of such charges paid by it for exportation of the goods. Refund claim - denial on the ground of non-submission of proper invoice, proof of payment of service tax and GTA services and accredition certificate issued by the competent agency - Held that - we are remanding the matter to the original authority for verification of the documents to be produced by the appellant. Appeal allowed in part and part matter on remand.

Summary

Issues Involved: Denial of refund claim under Notification No.41/2007-ST dated 06.10.2007, as amended.

Detailed Analysis:

1. Issue of Denial of Refund Claim: The primary issue in this case pertains to the denial of a refund claim under Notification No.41/2007-ST dated 06.10.2007, as amended. The grounds for denial included: a) goods exported under claim for duty drawback, b) refund claim for specific charges not covered under Port Services, c) non-submission of proper invoice, d) non-submission of proof of payment of service tax on GTA services, and e) lack of accreditation of service provider for cleaning activity.

2. Retrospective Effect of Deletion of Condition 1(e): The Ld. Consultant argued that the condition in Serial No.1(e) of the Notification regarding the claim of duty drawback was deleted retrospectively vide Notification No.33/2008 dated 7/12/2008. However, the Tribunal held that the deletion should not have retrospective effect and would not apply to refund claims filed prior to 07.12.2008. Therefore, refund claims for the period before the amendment date were not considered.

3. Eligibility for Refund on Specific Charges: The Tribunal acknowledged that certain charges like THC Charges, bill of lading charges, origin haulage charges, and repo charges were utilized within the port of export for exportation of goods. Despite the classification of service providers, these charges were considered as port services for the purpose of refund under the Notification dated 06.10.2007. The Tribunal referred to previous decisions where refund benefits were extended on similar charges, thereby ruling in favor of the appellant for refund on these specific charges.

4. Non-Submission of Documents: The issue of non-submission of proper documents such as invoices, proof of payment of service tax on GTA services, and accreditation certificates for cleaning activity was addressed. The Ld. Consultant assured that the required documents were available and could be produced before the original authority for verification. The Tribunal decided to remand the matter to the original authority for verification of the documents to be submitted by the appellant.

5. Final Decision: After considering the arguments from both sides and examining the records, the Tribunal concluded that the appellant should be eligible for a refund of charges incurred for exportation of goods within the port. The Tribunal directed the original authority to verify the documents related to non-submission issues before making a final decision on the refund claims. The appeals were disposed of accordingly.

This comprehensive analysis highlights the key issues, arguments presented by both parties, legal interpretations made by the Tribunal, and the final decision rendered in the case.