2012 (8) TMI 373 - AT - Service Tax

Whether the appellants could have paid tax on an exempted services and claimed refund under Notification No. 17/2009 which allows refund of tax paid on services used in or in relation to the export of goods Held that - No clause barring an assessee from paying tax on exempted services and claiming refund thereafter in the Finance Act, 1994 unlike in the case of payment of duty under the Central Excise Act - findings of the lower appellate authority that the assessee could not have claimed refund under Notification No. 17/04 is not correct in law in favor of assessee

Summary

Issues:
1. Condonation of delay in filing separate appeals.
2. Refund of service tax on GTA services under Notification No. 17/2009.

Condonation of Delay:
The appellant filed a composite appeal against an order passed by the Commissioner of Central Excise & Customs. The Registry directed them to file separate appeals, resulting in a delay of 96 days in filing a separate appeal. The Tribunal allowed the application for Condonation of Delay after finding the reason for delay satisfactory.

Refund of Service Tax on GTA Services under Notification No. 17/2009:
The appellant, a merchant exporter, paid service tax on GTA services and claimed a refund under Notification No. 17/2009 for goods exported. The Revenue contended that the appellant was not required to pay service tax as per Notification No. 33/2004, and the payment made was under a mistake of law. The Commissioner (Appeals) denied the refund, stating that the amount paid was a deposit with the government and not tax. The Tribunal considered whether the appellant could pay tax on exempted services and claim a refund under Notification No. 17/2009, which allows a refund of tax paid on services used for exporting goods.

The Tribunal held that the provision prohibiting payment of tax on exempted goods under the Central Excise Act did not apply to service tax. The Finance Act, 1994, did not have a clause barring an assessee from paying tax on exempted services and claiming a refund. Therefore, the Tribunal set aside the Commissioner's order and allowed the appeals with consequential relief, if any.

In conclusion, the Tribunal clarified the legal position regarding the payment of tax on exempted services and the eligibility to claim a refund under specific notifications.