2018 (8) TMI 1456 - AT - Service Tax

SEZ Unit - Refund claim - service tax paid on services used for the authorized operations of SEZ unit as approved by the unit approval committee - rejection of amount paid as retainership fee on the ground that the impugned service is not mentioned in the list approved by the UAC. Held that - There is no service in the nature of retainership service . Retainership, as is understood in the market parlance, is a form of payment for service; either the service provider gets paid for each item of work or he gets paid on a periodical basis certain amount (called as retainership) so that he can make his services available as and when required. The retainership could be for any service such as consultancy, lawyers, technical experts, etc. Unless the nature of the service rendered is clear and the service tax paid is also clear, it cannot be determined whether the appellant in this case will be entitled to refund of service tax or not - this factual matter which needs to be verified - appeal allowed by way of remand.

Summary

Issues involved:
Refund claims under Notification No.12/2013-ST for service tax paid on services used for SEZ unit operations; Rejection of refund amounts on various grounds; Dispute over nature of services rendered and classification for refund eligibility.

Analysis:
1. Refund Claims and Rejection Grounds: The appellants, an SEZ unit, filed refund claims for service tax paid on services used for authorized operations. The lower authority sanctioned a partial refund but rejected amounts for being filed beyond one year, not related to the unit, and for services not paid under the claimed category. The first appellate authority allowed one refund but rejected others, emphasizing the need to link payments to relevant invoices and fulfill conditions for refund under a conditional notification.

2. Nature of Services Dispute: The appellant sought refund for services categorized as scientific/technical consultancy, arguing they were utilized for authorized operations. However, the first appellate authority rejected the claim, stating the appellant failed to link payments to relevant invoices and clarify the nature of services received. The appellant contended that the rejection was unjustified as they had received and paid service tax on the services, which were essential for their approved operations.

3. Retainership Service Dispute: In another appeal, the first appellate authority rejected a refund for retainership fees, as it was not an approved service by the Unit Approval Committee. The appellant argued that the service was consulting engineering, despite being labeled as retainership service in the invoice. The Departmental Representative reiterated the conditional nature of refunds and cited a precedent emphasizing that recipients cannot alter the classification of services for refund claims.

4. Judicial Decision: The Member (Technical) analyzed the arguments and records, concluding that the nature of services, especially retainership service, needed verification to determine refund eligibility. Emphasizing the need for clarity on the services rendered and taxes paid, the matter was remanded to the original authority for examination. The appellant was instructed to provide evidence linking service tax payments to approved services and justifying their eligibility for refunds based on the conditions specified by the Unit Approval Committee.

In conclusion, the appeals were allowed for remand to the original authority for further examination and verification of the nature of services rendered and tax payments made, highlighting the importance of meeting conditions for refund eligibility under the applicable notifications.