2015 (11) TMI 239 - AT - Service Tax

Denial of refund claim - services used for export of goods - Business Support Service, Clearing and Forwarding Service, Bank and Financial Services - Notification No. 52/2011-ST 13/12/2011 - Held that - Appellant have subsequently made refund claim under Notification 52/2011-ST instead of Notification 41/201-ST. Therefore, I am of the view that refund is clearly covered by Notification No. 52/2011-ST and not by 41/2012-ST. On this fact the judgment in the case of WNS Global Services (P) Ltd.(2008 (1) TMI 94 - CESTAT, MUMBAI) relied upon by the Ld. Counsel is not applicable to the present case. In view of the above position the services of business support services is not covered under Notification No. 52/2011-ST, therefore refund on business support service is not admissible. If service tax was paid by the service provider under the head of clearing and forwarding services or cargo handling service or in any other service then appellant is entitled for the refund. But if it is found that service tax paid under the business support service irrespective of the nature of the service the appellants is not entitled for the refund. As regard the clearing and forwarding services from the bill of the service provider it can be seen that the bill was raised by the clearing and forwarding agent, therefore apparently the service for which the bill is raised is for clearing and forwarding service. In this bill classification of services is not provided therefore it is not known under which head service tax is paid. These facts need to be verified on the basis of payment details of the service tax made by service provider. - Matter remanded back in respect of business support service and clearing and forwarding service - Decided partly in favour of assessee.

Summary

Issues:
Refund claim rejection for business support service, clearing and forwarding service, and banking and financial services under different notifications.

Analysis:
The appeal challenges the rejection of a refund claim by the Commissioner (Appeals) for services related to the export of soya products. The appellant, an exporter, filed a refund claim for service tax paid on various services under different notifications. The adjudicating authority partially allowed the claim but rejected it for business support service, clearing and forwarding service, and banking and financial services. The appellant contended that these services should be eligible for refund under Notification No. 52/2011-ST. The appellant argued that business support service was akin to clearing and forwarding or cargo handling services covered under the said notification. Similarly, for clearing and forwarding service, the appellant asserted that the services provided by the agent fell under the notification. Regarding banking and financial services, the appellant claimed that the services related to export proceeds and foreign exchange were explicitly covered by the notification. The appellant also cited a judgment to support the retrospective application of a notification.

The Revenue, represented by the Assistant Commissioner, maintained that the export occurred before the issuance of Notification No. 41/2012-ST, making the refund claim fall under Notification No. 52/2011-ST. The Revenue argued that the appellant's correction of the refund claim to align with the latter notification rendered the former inapplicable. The Revenue contended that business support service was not covered under the relevant notification, and clearing and forwarding service was not clearly identified in the invoices. However, the Revenue acknowledged that banking and financial services were covered under the notification.

The Tribunal analyzed the submissions and records, noting that the refund claim period overlapped with the applicability of Notification No. 52/2011-ST. The Tribunal found that the appellant's subsequent claim amendment under the latter notification indicated the refund fell under it, not under Notification No. 41/2012-ST. The Tribunal ruled that business support services were not covered by the notification, but the nature of the service could qualify as clearing and forwarding services eligible for a refund. The Tribunal emphasized the need to verify the service tax payment details to determine the service classification. For banking and financial services, the Tribunal disagreed with the Commissioner's finding and allowed the refund, as these services were explicitly mentioned in the notification. The Tribunal remanded the matter to the original authority for further verification based on the service tax payment particulars provided by the appellant, ensuring a fair opportunity for additional submissions and personal hearings.

In conclusion, the Tribunal upheld the rejection of the refund claim for business support services but allowed refunds for clearing and forwarding services and banking and financial services, subject to verification of service tax payment details. The matter was remanded to the original authority for further examination in line with the Tribunal's directions.