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2019 (7) TMI 1181 - AT - Service TaxRefund claim - specified services used in relation to the authorised operations in the Special Economic Zone - refund rejected only on the basis that CST/VAT has also been charged by the supplier and therefore it is the sale of goods and not service - benefit of N/N. 17/2011-ST dated 1.3.2011 - Principles of natural justice - HELD THAT - It is true that if the supplier has charged service tax and the assessee has paid the same, they the assessee is eligible for the Cenvat Credit. But this important aspect has also not been dealt with in the impugned order although as per the learned Counsel the Invoice was produced before the 1st Appellate Authority. Be that as it may, in my view the impugned order is a non-speaking order. Without going into the merits of the contentions raised herein, the impugned order is set aside only to the extent of rejection of the amount of ₹ 1,51,348/- and remanding the matter back to the 1st Appellate Authority with a direction to decide the Appeal after following principles of natural justice - appeal allowed by way of remand.
Issues:
Refund claim rejection based on charging of CST/VAT along with Service Tax for software used in SEZ operations. Detailed Analysis: 1. Issue of Refund Claim Rejection: The Appellant, engaged in software development in a Special Economic Zone (SEZ), filed a refund claim under Notification No.17/2011-ST for Service Tax paid on specified services used in SEZ operations. The claim was rejected, primarily citing the supplier's charging of CST/VAT along with Service Tax, leading to the contention that it was a sale of goods, not a service. The rejection was upheld through various stages of adjudication, culminating in the impugned order dated 23.4.2018. 2. Contentions of the Appellant: The Appellant argued that the rejection of the refund claim should not be based solely on the charging of CST/VAT by the supplier. They maintained that the services availed fell under taxable services as per the Finance Act, 1994, and were used for authorized SEZ operations, meeting the conditions of the notification. The Appellant emphasized that the charging of VAT/CST did not automatically convert the transaction into a sale of goods, as Service Tax was separately charged and paid. The Appellant sought a refund of the Service Tax amount, regardless of the CST/VAT being levied. 3. Judicial Analysis and Decision: The Member (Judicial) noted that the rejection of the refund claim was solely due to the presence of CST in the invoices, without adequately considering that both CST and Service Tax were charged by the supplier. The Member observed that the lower authorities failed to address the Appellant's submissions effectively. Upon reviewing the invoice and acknowledging the payment of Service Tax by the Appellant, the Member deemed the impugned order as non-speaking, lacking a proper analysis of the contentions raised. Consequently, the Member set aside the rejection of the refund claim amounting to &8377; 1,51,348/- and remanded the matter back to the 1st Appellate Authority for a fresh decision following principles of natural justice and addressing all contentions raised by the Appellant. 4. Outcome: The Appeal was allowed by way of remand, emphasizing the need for a comprehensive review of the refund claim rejection. The Member's decision highlighted the importance of considering all aspects of the case, including the charging of CST/VAT and Service Tax, to ensure a just and informed adjudication process. (Order pronounced in the open Court on 19/07/2019)
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