2013 (12) TMI 268 - AT - Service Tax

Denial of refund claim - Service tax paid under Technical Inspection and Certification Service - Refund filed for exemption on technical testing and analysis service in relation to human beings or animals - Adjudicating authority sanctioned refund claim - Commssioner ser aside refund sanctioned - Held that - applicants are not providing any certification in respect of the testing and the testing is done by visual examination. Therefore, prima facie we find that the applicants have not made out a case for total waiver of dues - Partial stay granted.

Summary

Issues Involved:
1. Application for waiver of pre-deposit of service tax refund.
2. Exemption of technical testing and analysis service for animals.
3. Dispute over service tax liability for seafood testing.
4. Adjudication of erroneous refund recovery.

Analysis:
The case involved an application for waiver of pre-deposit of service tax refund amounting to Rs.1,53,875. The applicants obtained service tax registration for 'Technical Inspection and Certification Service' and later filed a refund claim citing exemption for technical testing and analysis service related to human beings or animals. The adjudicating authority initially sanctioned the refund, but the Revenue challenged the decision. The Commissioner (Appeals) set aside the adjudication order, leading to a show cause notice for recovery of the refund. The adjudicating authority confirmed the demand, which was upheld by the Commissioner (Appeals), resulting in the current proceedings regarding the recovery of the erroneous refund.

The main contention raised by the applicants was that they provided technical testing and analysis service for animals, which they argued was not subject to service tax. They specifically mentioned that the seafood they tested was exported, and they received fees in American Dollars, further asserting that the demand was not sustainable in this context. On the other hand, the Revenue's argument was that the applicants only conducted visual examination of the seafood without providing any certification related to testing. They pointed out that the exemption for technical testing and analysis service in live animals for disease detection and cure did not apply to seafood testing.

Upon considering the facts and circumstances of the case, the Tribunal found that the applicants did not provide certification for the testing, which was primarily based on visual examination. Consequently, the Tribunal concluded that the applicants had not sufficiently demonstrated a case for a total waiver of dues. However, taking into account the overall situation, the Tribunal directed the applicants to deposit Rs.75,000 within eight weeks. Upon this deposit, the pre-deposit of the remaining dues was waived, and the recovery of the same was stayed during the appeal process. The applicants were required to report compliance by a specified date.

In summary, the judgment addressed the waiver of pre-deposit of a service tax refund, the exemption of technical testing services for animals, the dispute over service tax liability for seafood testing, and the adjudication of erroneous refund recovery, ultimately requiring the applicants to make a partial deposit while waiving the remaining dues pending appeal.