2014 (2) TMI 707 - AT - Service Tax

Denial of refund claim - Whether the appellant is eligible for refund of service tax paid on Courier Services utilized for export of motor vehicle parts for replacement under warranty - Held that - show-cause notice itself admits that exports were made to fulfill warranty obligations and therefore at this juncture, it may not be appropriate to take up a detailed finding on the ground which was not before the original authority or the appellate authority at any time. Further when parts are supplied to fulfill warranty obligation, naturally there will be no sale proceeds. In such situations, whether Condition No. 4 is to be fulfilled or not is another issue which requires detailed consideration. Since prima facie there is no dispute that goods have been supplied free of cost and no foreign exchange was to be realized, I consider that appellant has made out a case for waiver of pre-deposit and grant of stay - Stay granted.

Summary

Issues:
- Eligibility for refund of service tax paid on 'Courier Services' utilized for export of motor vehicle parts for replacement under warranty.
- Validity of show-cause notices for recovery of wrongly sanctioned refund under Section 73 of the Finance Act 1994.
- Interpretation of Condition No. 4 of Notification No. 17/2009 regarding realization of sale proceeds under Foreign Exchange Management Act.

Analysis:
1. The main issue in the appeals was whether the appellant is entitled to a refund of service tax paid on 'Courier Services' used for exporting motor vehicle parts for warranty replacement. Initially, the refund claims were approved, but later show-cause notices were issued for recovery of the refund under Section 73 of the Finance Act 1994. The impugned orders demanded the refunded amount with interest, citing non-realization of sale proceeds as per Condition No. 4 of Notification No. 17/2009, which requires realization within the period allowed under the Foreign Exchange Management Act.

2. The appellant challenged the impugned orders on the grounds that the refund approvals had become final and issuing show-cause notices amounted to a review of those orders. Additionally, it was argued that since the parts were supplied to fulfill warranty obligations, and this fact was acknowledged in the show-cause notice, rejecting the refund claim based on non-realization of sale proceeds was incorrect.

3. The Departmental Representative contended that the adjudicating authority had the power to issue show-cause notices under Section 73 of the Finance Act, which was exercised correctly. It was also highlighted that in some instances, it was not explicitly stated that the parts were supplied to fulfill warranty obligations.

4. The judge considered both sides' submissions and found that while the issuance of show-cause notices required further examination, the show-cause notice itself acknowledged that exports were made to fulfill warranty obligations. Therefore, a detailed finding on the non-realization of sale proceeds was deemed premature. Given that parts supplied for warranty obligations would not generate sale proceeds, the applicability of Condition No. 4 needed thorough consideration. As it appeared that no foreign exchange was to be realized due to the nature of the transaction, the judge granted a waiver of pre-deposit and stay against recovery of dues during the appeal process.

This judgment underscores the importance of considering the specific circumstances of transactions when determining eligibility for tax refunds and the interpretation of statutory provisions governing such matters.