2017 (5) TMI 399 - AT - Service Tax

Refund claim - denial on the ground that appellant availed CENVAT credit - Held that - this ground of rejection is not tenable under the fact that the appellant availed benefit under N/N. 30/2004 CE and further no instance of taking Cenvat credit in pointed out in the impugned orders - refund allowed. Refund claim - rejection on the ground that the appellant has availed drawback as per shipping bills, goods should have been exported without availing drawback of service tax paid on specified services - Held that - CBEC Board Circular No. 13/2000-SC is specific in stating that only the input services which have been used in the manufacture, have been factored - the services availed in the course of export, post clearance have not been factored in the All Industry Rates of Drawback and accordingly the same is not relevant for the purpose of refund - refund allowed. Refund claim - services of foreign commission agents under BAS - rejection on the ground that conditions of N/N. 41/2007 ST not met - Held that - The ld. counsel have taken me through the relevant shipping bills, wherein the payment of commission have been effected. Further, drawn my attention to the debit notes issued by the foreign service providers, wherein reference of letters of credit, invoice numbers of the appellant, etc. are available, in support of the export transaction. It is also not the case of revenue that the appellant have paid more commission than the permissible amount i.e. 2% of the aforesaid value of the exports - rejection not tenable. Refund claim - denial on the ground that the appellant did not submit any evidence that the service provider, were authorized by port trust or other port to render the services - Held that - Board Circular No. 112 clarified that the granting of refund to exporters on taxable services that he receives and uses for export, do not require verification of registration certificate of the supplier of service - refund allowed. Refund claim - CHA services - denial on the ground that the conditions of CHA Services as given in serial No. 13 of the notification not met - Held that - bill of lading number and date, export container number, vessel name, port of loading, port of delivery, description of export goods etc., is given. In this view of the matter, I hold that all the relevant information is available for allowing the refund of CHA Services received - refund allowed. Refund claim - C & F Agent Services - denial on the ground that the said service was notified by way of amendment with effect from 07/12/2008 - Held that - From the bill it is evident that the services are been provided in the nature of terminal handling charges and documentation charges. I find that these services are eligible services at the same are also provided by the CHA and also fall under the port services. In this view of the matter, I hold that the appellant is entitled to refund for this service - refund allowed. Refund claim - transport of goods by rail - services of transporting the container from the ICD, by Container Corporation of India (Concor) to the Gateway Port - denial on the ground that the appellant failed to certify the conditions of the services by Rail - Held that - The appellant have taken me through the sample invoice of Concor in the appeal paper book, in which Concor have given the container number, cost of freight and the cost of handling charges. The name of the appellant is also there. Accordingly, I hold that the appellant is entitled to refund on the services subject to verification of the invoices of Container Corporation of India with the shipping documents and/or let export order - matter on remand. Refund claim - GTA Services - Held that - the refund of tax/duty on GTA Services is available in principle, subject to verification of the bills of the GTA Service provider with the export documents - matter on remand. Refund claim - time limitation - the refund claim was filed for the period October to December 2008 on 30/06/2009 - Held that - it had been clarified in the said notification that for the refund claim of April to June quarter 2008, the refund claim can be filed up to 31/12/2008 - in view of the amending notification, refund is allowed. Appeal allowed - decided partly in favor of appellant.

Summary

Issues involved: Refund claims under Notification No. 41/2007 ST for Service tax paid and utilized in the course of export.

Analysis:
1. The first issue pertains to the refund claims made by the appellant, an exporter of cotton garments, under Notification No. 41/2007 ST. The appellant claimed refunds for Service tax paid during specific export periods, which were subsequently rejected. The appellant argued that they did not avail Cenvat credit and were entitled to Central Excise Exemption under Notification No. 30/2004 CE, which was not disputed by the Revenue. The Tribunal found this ground of rejection untenable due to the appellant's compliance with the exemption conditions and lack of evidence of Cenvat credit availed.

2. The second issue revolved around the availing of drawback on service tax paid on specified services. The appellant had availed drawback as per shipping bills, citing Duty Drawback Rules, 1995, and CBEC Circulars to support their claim. The Tribunal noted that services used post-clearance for export were not factored into duty drawback rates, and hence, the appellant was eligible for the refund under Notification No. 41/2007 ST.

3. The third issue concerned conditions related to foreign commission agents' services under Notification No. 41/2007 ST. The appellant provided evidence of commission payments, compliance with conditions, and referenced relevant circulars. The Tribunal held that the ground of rejection based on non-compliance with conditions was not tenable, considering the appellant's substantiated claims.

4. The subsequent issues addressed the rejection grounds related to specific services like export services, CHA services, C & F agent services, transport of goods by rail, and GTA services. The Tribunal examined the invoices, compliance with conditions, and relevant circulars to determine the eligibility of the appellant for refunds on these services. In each case, the Tribunal found the grounds of rejection to be untenable based on the evidence presented by the appellant.

5. Lastly, the issue of limitation was raised concerning the filing of refund claims within the stipulated time frame. The appellant argued that the claims were within the extended time limit provided in an amending notification. The Tribunal agreed with the appellant, setting aside the ground of rejection based on the limitation period and directing the Adjudicating Authority to re-compute the refunds accordingly.

In conclusion, the appeals were allowed in part, and the Adjudicating Authority was instructed to re-compute the refunds within a specified timeframe, along with interest as per rules. The appellant was granted liberty to approach the Authority with a copy of the order and refund calculations.