2015 (1) TMI 40 - AT - Service Tax

Denial of refund claim - Notification No. 41/2007-ST dated 06.10.2007 - Held that - Under Notification No. 41/2007-ST dated 06.10.2007 certain services have been allowed exemption to the exporters by way of exemption notification when used for export of goods. Appellant provided all the details showing payment of service tax and its co-relation with the documents and the refund claims. One such representative document No. 51/2008-09 dated 10.10.2008 of M/s. West Shipping Agency International Freight Booker, Ahmedabad furnished by the appellant show payment of service tax at the rate of 12.36%. This document also mentions Shipping Bill No., Invoice No. and Bill of lading No. which can be easily linked to the export of goods. It is not understood as to how lower authorities have come to the conclusion that service tax payment details are not co-relatable with the export consignment. Learned Adjudicating authority is discussing a CBEC Circular No. 106/9/2008-ST dated 11.12.2008 for denying refunds but failed to consider a favourable CBEC Circular No. 112/6/2009-ST dated 12.3.2009 now relied upon by the appellants. Further a number of case laws deciding these issues have been relied upon by the appellant which were not produced before the adjudicating authority. It is also not clear from the findings of the lower authorities as to why service tax paid on the documents cannot be correlated with the export documents. The admissibility of refunds and verification of documents/ records is properly required to be done in view of the judicial pronouncements of this Bench and CBEC Circular dated 12.3.2009, which can only be done by the Adjudicating authority. - matter remanded back - Decided in favour of assesse.

Summary

Issues:
Refund claims under Notification No. 41/2007-ST dated 06.10.2007; Denial of refund of certain charges by lower authorities; Scope of show cause notice; Co-relation of services availed with export documents; Consideration of documentary evidence by lower authorities; Interpretation of CBEC Circulars; Admissibility of refunds; Remand to Adjudicating authority.

Analysis:
The appeals were filed against orders by the first appellate authority regarding refund claims under Notification No. 41/2007-ST dated 06.10.2007. The dispute centered on the denial of refund for various charges beyond those disputed in the show cause notice. The appellant argued that all services availed could be linked to export documents provided, emphasizing the lower authorities' failure to consider the furnished documents. The advocate highlighted the co-relation between service tax paid and refund claims, supported by numerous documents and case laws like Macro Polymers Pvt. Limited vs. CCE, Ahmd. The appellant contended that rejection based on service provider registration was unfounded, citing CBEC Circular No. 112/6/2009-ST dated 12.3.2009.

The Revenue defended the lower authorities' decision, asserting non-fulfillment of conditions under Notification No. 41/2007-ST dated 06.10.2007 for refund rejection. Upon hearing both sides, the Tribunal noted that the appellant provided evidence linking service tax payments to export consignments, questioning the lower authorities' conclusions. The Adjudicating authority's reliance on a specific CBEC Circular for denial without considering a more favorable Circular and relevant case laws was criticized. The Tribunal found that the Adjudicating authority failed to consider relied-upon case laws and Circular No. 112/6/2009-ST dated 12.3.2009, necessitating a remand to reevaluate the case in light of these aspects.

In the final decision, the Tribunal allowed the appeals by remanding them to the Adjudicating authority for a fresh review considering the case laws and Circulars overlooked in the initial decision. The need for proper verification of documents and records, as well as adherence to judicial pronouncements and Circulars, was emphasized for a fair determination of the refund claims.