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2009 (10) TMI 229 - AT - Service TaxClaim for refund of duty- Notification No. 41/2007-ST, dated 17.9.2007- The assessee merchant exporter exported certain goods and for the export of those goods, they used services of ports, goods transport agencies, technical testing and analysis agency and custom house agent. The assessee filed refund claim of service tax paid on above services in view of Notification No. 41/ 2007-ST, dated 17.09.2007. The deputy Commissioner sanctioned the refund. The Commissioner (Appeals) upheld the order of deputy commissioner. In the light of the series of judgment, in which Tribunal has held that Cenvat Credit cannot be denied to a receiver of duty paid inputs, by the Central Excise Authorities having jurisdiction over the input receiver, by revising the assessment of duty at the supplier s end, held that- the same principle would be applicable to the instant case the service tax refund available to the exporters who have received the taxable services in connection with export of goods, can not be revised. The revenue appeal is to be dismissed.
Issues:
1. Interpretation of Notification No. 41/2007-ST for service tax refund on specified services used for export of goods. 2. Disallowance of certain refund amounts by the revenue based on service tax payment details. 3. Review of service tax payment by service providers for disallowing refund to exporters. 4. Applicability of Tribunal judgments on Cenvat credit denial and duty assessment revision. Issue 1: Interpretation of Notification No. 41/2007-ST The judgment revolves around the interpretation of Notification No. 41/2007-ST, which provides for the claim of service tax refund by exporters for specified services used for exporting goods. The notification outlines conditions for exemption and refund of service tax paid on services like port services, technical testing, goods transport agency services, custom house agent services, and specified clearing services. The exporters filed refund claims based on these services used for export, which were partially allowed by the jurisdictional authorities, leading to appeals by the revenue. Issue 2: Disallowance of Refund Amounts The revenue sought to disallow certain refund amounts claimed by exporters, contending that the service tax paid on services like supervision of containers, weighing, sampling, cargo handling, and stevedoring charges was not eligible for refund under Notification No. 41/2007-ST. The revenue argued that the amounts claimed by exporters included charges for services not specified in the notification, thus questioning the validity of the refund granted by the authorities. Issue 3: Review of Service Tax Payment by Service Providers A crucial point of contention was the revenue's attempt to review the assessment of service tax payment by service providers to disallow refund amounts to exporters. The revenue argued that certain charges included in the service tax payment by providers were not part of the specified services eligible for refund, leading to a dispute over the assessment of service tax at the provider's end and its impact on the refund claims of exporters. Issue 4: Applicability of Tribunal Judgments The judgment referred to previous Tribunal decisions, such as MDS Switchgear Ltd. v. CCE and other cases, to establish the principle that unless the service tax payment by service providers is revised by the jurisdictional tax officers, the refund available to exporters cannot be revised. The Tribunal emphasized that the assessment of service tax at the provider's end should not be reviewed to disallow refund to exporters, aligning with the principles established in earlier cases regarding duty assessment and Cenvat credit denial. In conclusion, the Tribunal dismissed the revenue's appeals, upholding the impugned orders in favor of the exporters. The judgment highlighted the importance of adhering to the conditions specified in the notification for service tax refund and emphasized that the assessment of service tax payment by providers should not be revisited to disallow refunds to exporters unless revised by the relevant tax authorities.
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