2016 (6) TMI 278 - AT - Service Tax

Eligibility of refund claim - tax paid on value of services availed in the course of export of iron ore fines - exemption notification no. 17/2009-ST dated 7th July 2009 - Corrigendum/addendum was improper - issued after the receipt of reply to the show cause notice - Held that - the provisions of the relevant exemption notification require submission of proof that the specified services had indeed been received by the exporter claiming refund of the tax paid. In the instant case, the documents evidence that services were rendered to M/s MME Exports and not to the respondent herein. The documents on record fail to evince nexus between the applicant and the services claimed to have been used. It must also be noticed that the first appellate authority is not empowered to remand matters to the original authority under section 35A of the Central Excise Act, 1994. Therefore, the impugned order is set aside as lacking legally and propriety. The findings of the original authority that the applicant is not eligible for refund, owing to non-compliance with the period prescribed for making such applications and the inability of the claimant to evince utilization of eligible services, is sustained. - Decided in favour of revenue

Issues:
- Refund claim based on exemption notification
- Rejection of refund claim by competent authority
- Addendum issued altering proceedings
- First appellate authority's decision
- Appeal against first appellate authority's order
- Legality and propriety of remand terms
- Eligibility for refund based on non-compliance
- Nexus between applicant and services claimed
- Authority to issue corrigendum
- Power of first appellate authority to remand
- Final decision on the refund claim

Refund claim based on exemption notification:
The case involved a refund claim by M/s Shantadurga Transport Pvt Ltd for tax paid on services availed during the export of iron ore fines, based on exemption notification no. 17/2009-ST. The claim was submitted after a year from the date of export, leading to deficiencies in documentation noted by the competent authority.

Rejection of refund claim by competent authority:
The competent authority issued notices for rejection of parts of the claim, citing reasons such as non-extension of exemption to education cess and services utilized at the port of discharge. Despite opportunities to respond, the applicant did not avail them, leading to the rejection of the refund claim based on tribunal decisions.

Addendum issued altering proceedings:
The first appellate authority accepted the contention that issuing addendum altered the proceedings improperly, citing tribunal decisions and directing re-adjudication based on the original show cause notice contents. The appeal against this decision argued that addenda were issued with opportunities for the applicant to present their case.

First appellate authority's decision:
The first appellate authority set aside the rejection of the refund claim, directing re-adjudication based on the original show cause notice. The appeal by the Commissioner of Central Excise, Goa contested this decision, highlighting issues of tax limitation and the identity of the taxpayer.

Legality and propriety of remand terms:
The judge found that the competent authority had raised piecemeal objections, but the delay in filing the refund claim and the lack of proof of services utilized rendered the applicant ineligible for a refund. The restricted remand ordered by the first appellate authority was deemed beyond the recognized benefits by law.

Eligibility for refund based on non-compliance:
The judge noted that the applicant failed to comply with the prescribed period for the refund application and could not prove the utilization of eligible services, leading to the sustained decision of ineligibility for a refund.

Nexus between applicant and services claimed:
The documents on record did not establish a connection between the applicant and the services claimed for a refund, similar to a previous tribunal decision involving a third-party merchant exporter.

Authority to issue corrigendum:
The tribunal's decisions on issuing corrigendum were discussed, highlighting the importance of granting an opportunity to be heard after issuing addendum/corrigendum, which the applicant did not exercise in this case.

Power of first appellate authority to remand:
It was noted that the first appellate authority lacked the power to remand matters to the original authority under section 35A of the Central Excise Act, 1994, raising questions about the propriety of the remand terms.

Final decision on the refund claim:
Ultimately, the judge set aside the first appellate authority's decision, sustaining the original authority's findings that the applicant was not eligible for a refund due to non-compliance with the prescribed period and the inability to prove the utilization of eligible services. The cross-objection by M/s Shantadurga Transport Pvt Ltd was also disposed of in the same judgment.

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