2019 (5) TMI 1408 - AT - Service Tax

Refund of service tax paid - exports made during the period December 2010 to May 2012 - N/N. 17/2009 dated 07.07.2009 and 52/2011 dated 30.12.2011 - HELD THAT - In view of the amendment to definition of port services, all services provided within the port area are classified as port services Further, there is no such condition prescribed in the notification which requires the service provider to be authorized by the port - Since the Appellants refund claim was for more than 0.25% of the FOB value of exports, there was no need for self-certification. The conclusion of the Ld. Commissioner (Appeals) that the certificate is a general open ended certificate is erroneous and not tenable, especially when the notification is silent w.r.t the format in which the certificate has to be submitted. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claims under notifications 17/2009 and 52/2011 for exports made during December 2010 to May 2012; Review by Jurisdictional Commissioner u/s 83; Non-compliance with notification conditions; Orders in Original reviewed; Appeals filed by Revenue; Commissioner (Appeals) decision challenged.

Analysis:
The Appellants, exporters of goods, filed 26 refund claims under specific notifications. The Jurisdictional Commissioner reviewed the Orders in Original and found non-compliance with notification conditions, leading to Revenue appealing before the Commissioner (Appeals) seeking to set aside the refund grants. The Commissioner (Appeals) allowed the appeals, emphasizing the need for procedural compliance as per SC decisions. The Appellants challenged this decision, arguing against the procedural lapses cited by the Commissioner (Appeals).

The Appellants contested various points raised by the Commissioner (Appeals). They argued that the onus to prove service provider exemption was not on them as per the notification. They also highlighted that no requirement existed for service providers to be registered with port authorities as per the notification. The Appellants defended the validity of the Chartered Accountant certificate and the absence of self-certification due to the refund amount exceeding 0.25% of the FOB value. They also relied on legal precedents to support their claim that substantive benefit should not be denied for procedural lapses.

The Appellants' arguments were supported by the Tribunal, which found that the Commissioner (Appeals) had imposed additional conditions not specified in the notification. The Tribunal clarified that all services within the port area were classified as port services, and there was no requirement for service providers to be authorized by the port. The Tribunal emphasized that insignificant requirements could be waived off for orderly business conduct. Consequently, the Tribunal set aside the Orders in Appeal, allowing the Appellants' appeals with consequential benefits.