2010 (7) TMI 202 - AT - Service Tax

Stay Refund - The applicant are a registered 100% EOU and rendering BPO services taxable as business auxiliary services. Appellant claimed service tax credit on input services. Copy of invoices produced and documents held as not produced, ought to have been specifically called for. Held that prima facie services exported and substantial amounts received in foreign exchange.. revision order for recovery of refund not sustainable. Case made out for waiver. Pre deposit waived.

Summary

Issues:
1. Revision of refund orders by the Commissioner under Section 84 of the Finance Act, 1994.
2. Verification of original export invoices and input services for refund of Cenvat credit.
3. Prima facie evaluation of the applicant's eligibility for refund.
4. Decision on the waiver of dues and stay on recovery pending appeal.

Revision of refund orders by the Commissioner under Section 84 of the Finance Act, 1994:
The case involved a registered 100% EOU providing BPO services to foreign clients and claiming refunds of Rs. 86,264/- and Rs. 2,03,117/- sanctioned by the original authority. The Commissioner revised the orders of the original authority and directed the recovery of the refunds along with interest. The main ground for revision was the non-submission of original export invoices and input services, which are required for verifying the refund eligibility under the notification. The Tribunal noted the lack of submission of original documents but observed that the applicant had produced copies of the invoices, indicating the export of services and receipt of substantial foreign exchange.

Verification of original export invoices and input services for refund of Cenvat credit:
The Tribunal considered the submission made by the learned Chartered Accountant for the applicants, highlighting that the Assistant Commissioner had verified the documents through the jurisdictional Superintendent, who recommended the refund claims after verifying the original documents. It was noted that if the original copies were not produced before the original authority, the Commissioner could have specifically requested them. The documents submitted prima facie supported the claim that the services were exported and payments were received in foreign exchange.

Prima facie evaluation of the applicant's eligibility for refund:
Based on the submissions and documents provided, the Tribunal found that the applicants were unable to utilize the credit on input services, leading them to apply for a refund. The Tribunal concluded that the applicants had made a case for waiver of the dues as per the impugned orders. Consequently, the Tribunal held that the orders in revision proposing the recovery of the sanctioned refunds may not be sustained, and decided to waive the pre-deposit of the dues and stay the recovery pending the disposal of the appeals.

Decision on the waiver of dues and stay on recovery pending appeal:
In light of the above findings, the Tribunal determined that the applicants had established a case for the waiver of dues and granted a stay on the recovery of the amounts until the appeals were disposed of. This decision was based on the inability of the applicants to utilize the Cenvat credit, the submission of relevant documents, and the prima facie evidence supporting the export of services and receipt of foreign exchange payments.