2010 (5) TMI 87 - AT - Service Tax

Refund of service tax on input services u/s 41/2007 Export of goods Power of the commissioiner (appeals) to condone the delay in filing an appeal - The original adjudicating authority rejected the refund claim on the ground that the conditions of the notification are not fulfilled - Commissioner (Appeals) rejected the appeal on the ground that the appellants should have filed the appeal under Central Excise law and not Finance Act, 1994. If the appeal was to be filed under Central Excise law, the delay in filing appeal comes to 38 days and the Commissioner (Appeals) has no power to condone the same. Held that Commissioner (Appeals) has powers to condone the delay upto 3 months in case of service tax, the order of Commissioner (Appeals) rejecting the appeal on the ground of delay is incorrect. Matter remanded for denovo consideration.

Summary

Issues:
Refund of service tax on input services for export goods; Proper filing of appeal under Central Excise law or Finance Act, 1994; Power of Commissioner (Appeals) to condone delay in filing appeal.

Analysis:
The appellants sought a refund of service tax paid on input services used for manufacturing export goods under Notification No.41/07-ST. The original authority rejected the refund claim citing non-fulfillment of notification conditions. The appeal was taken to the Commissioner (Appeals), who dismissed it on the basis that the appeal should have been filed under Central Excise law, not the Finance Act, 1994. The Commissioner (Appeals) also noted a delay of 38 days in filing the appeal, which they deemed unable to condone.

The advocate for the appellant argued that since the refund pertained to service tax on input services for export goods, the appeal filed in Form No.ST-4 was appropriate. Additionally, the advocate contended that the Commissioner (Appeals) had the authority to condone delays up to 3 months in service tax matters. The Tribunal agreed with the appellant's position, stating that the limitation for service tax refunds should be considered. As the Commissioner (Appeals) did not address the merits and incorrectly applied excise matter limitations, the Tribunal set aside the order and remanded the appeal for fresh consideration, allowing the appellant to present their case if desired.

In conclusion, the Tribunal's decision emphasized the correct application of limitations and procedures concerning service tax refunds for input services used in export goods. The ruling clarified the proper jurisdiction for filing appeals and the Commissioner (Appeals)'s power to condone delays in service tax matters, ensuring a fair and thorough review of the appellant's refund claim.