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2016 (11) TMI 59 - AT - Service TaxRefund claim - exemption under N/N. 17/2009-ST dated 7/7/2009 - Airport Services - Held that - the ATF was supplied which was treated as exports during the period July, 2009 to March, 2010 and the Airport services which is input service was received by the appellant during the same period. The Airport service was not covered under exemption notification no. 17/2009-ST dated 7/7/2009. It is important to note that this Notification exempt the services specified in the notification by way of refund. Therefore the exemption is available in the hands of the recipient. However, service provider in the present case is MIAL suppose to discharge the service tax - point of time of exemption under notification No. 17/2009-ST is time when services were received and used in export of the goods. In the present case receipt of the service as well as use in the exports of goods have taken place during the July, 2009 to March, 2010, at that material time there was no exemption provided to Airport service under notification no. 17/2009-ST, the exemption was made applicable to the airport service under notification no. 17/2009-ST only by amending notification no. 37/2010-ST w.e.f. 28/6/2010 i.e. much after the period of refund in the present case of the appellant. Therefore it is clear that exemption to Airport service by way of refund was not available during the period July, 2009 to March, 2010. Limitation bar - refund pertaining to the period 7/7/2009 to 27/7/2009 - Held that - as per condition (c) of para (1) of the Notification No. 17/09-ST, one of the important condition is that payment of service tax should be made by the service recipient, therefore before complying this condition refund does not arise - for services pertaining to the period 7/7/2009 to 27/7/2009 the service provider MIAL raised bills itself on 10/8/2009 therefore it is obvious that payment for said period was made after raising bill by MIAL. For this period refund claim was filed on 27/7/2010 which is well within the one year therefore refund is not time bar. Board Circular No. 354/256/2009-TRU dated 1/1/2010 - the same is not dealing with the issue in hand. It does not deal with the issue that even if the input service is not specified in the notification refund can be granted therefore circular will not apply in the facts of the present case.
Issues Involved:
Admissibility of refund claims for Service tax paid on "Througput Charges" by Mumbai International Airports Authority under Notification No. 17/2009-ST dated 7/7/2009 for the periods July 2009 to September 2009 and October 2009 to March 2010. Detailed Analysis: Issue 1: Refund Admissibility under Notification No. 17/2009-ST - The appellant filed two refund claims totaling Rs. 3,31,82,111 for Service tax paid on "Througput Charges" under Notification No. 17/2009-ST. - The adjudicating authority rejected the refund claims on the grounds that the Airport services were not covered under the notification at the time of export. - The appellant argued that the refund was admissible as per the amended notification No. 37/2010-ST dated 28/6/2010, which allowed refund for Airport services used in export of goods. - The appellant cited various CBEC Circulars and judgments to support their claim, emphasizing the objective of removing the burden of service tax from exported goods. - The Commissioner(Appeals) did not address the time bar issue for the period 7/7/2009 to 27/7/2009, indicating acceptance of the appellant's submission. - The Tribunal held that the exemption under Notification No. 17/2009-ST was not available for Airport services during the relevant period, as the amendment came into effect later. - Referring to a previous case, the Tribunal concluded that the services provided did not fall under the categories eligible for refund under the notification, upholding the rejection of the refund claims. Issue 2: Time Bar for Refund Claim - The appellant argued that the period for filing the refund claim should be reckoned from the date of payment of service tax, not the date of service received. - The Tribunal agreed with the appellant, noting that the payment for the relevant period was made after MIAL raised bills, making the refund claim within the one-year limit. - The Board circular and judgments cited by the appellant were deemed irrelevant as they did not address the specific issue at hand. - Relying on the legal position established in a previous case, the Tribunal upheld the rejection of the refund claim on Airport services, dismissing the appeals. In conclusion, the Tribunal found that the refund claims for Service tax paid on "Througput Charges" by Mumbai International Airports Authority were inadmissible under Notification No. 17/2009-ST for the relevant periods. Additionally, the Tribunal determined that the refund claim was not time-barred, considering the date of payment of service tax. The appeals were dismissed based on these findings.
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