2017 (6) TMI 510 - AT - Service Tax

Refund claim - N/N. 41/2007-ST - rejection on the ground that the provider of service was registered with the Department as C & F Agent and as such, refunds towards service tax paid for availing CHA services are not admissible - Held that - the Board vide clarification dated 12.03.2009 specifically mentioned that the above mentioned notification provides for exemption by way of refund. Such refund does not require verification of the registration certificate of the provider of service - refund granted. Rejection of ₹ 1,67,616/- and ₹ 72,601/- on the ground that no evidence was available that the said service tax was deposited by the service provider under the category of port services - Held that - It is by now a well settled proposition that THC, bill of lading charges, documentation charges, etc. are covered under port services and tax paid on such services are eligible for refund under the said notification - The Original Authority should verify the supporting documents and sanction the amount - refund allowed by way of remand. Rejection of ₹ 84,558/- on the ground of limitation - lower authorities held that the claim was filed beyond 60 days from the last date of the quarter during which the goods were exported out of the country - Held that - The Tribunal in the case of CCE Vs Pacific Leather Finishers, 2016 (2) TMI 727 - CESTAT ALLAHABAD held, in a similar set of facts dealing with limitation under the same notification, that the right to claim refund under N/N. 41 of 2007 ST crystallized when the service tax was paid by the exporter. Accordingly, the limitation should be referred to that date - As the refund will rise only on payment of service tax, the claims filed within the period of limitation calculated from such payment, should be considered as filed in time. Rejection a part of refund also on the ground that the appellants failed to furnish some of the invoices for scrutiny - Held that - As the goods were cleared from their Kota unit, they are eligible for service tax paid on CHA services. The documents will support the linkage of payment of service tax to the clearance of export goods from their Kota unit - refund allowed subject to verification. An amount of ₹ 3,16,261/- was rejected on the ground that the said export was not made by the appellant but the same was made by Merchant Exporter, M/s. Surya Vinayak Industries Ltd. - Held that - The port services were actually paid by Merchant Exporter and for which, the appellants did not claim any refund. The bills raised by CHA will indicate that the service tax for the services have been paid by the appellants - as long as the appellants goods were exported and the appellants suffered service tax on the specified services, they are entitled for refund. Service tax paid on inspection and certification service and technical testing and analysis services were rejected on the ground that the appellants did not file supporting evidences in terms of the said notification - Held that - appellants have supporting documents linking up the service tax payment with the export cargo - refund allowed subject to verification. In respect of services availed from M/s. Liladhar Passo Forwarders Pvt. Ltd. as Customs House Agent, the claim was rejected on the ground that the details required for processing claim is not available in the documents submitted by the appellants - Held that - the appellants have supporting evidence to indicate that the charges paid by CHA are with reference to their export cargo only - The documents can be linked to export made by the appellants - refund allowed subject to verification. The Original Authority has not examined the claims in right perspective before rejecting them. It is fit and proper to set aside the impugned orders and to remand the matter back to the Original Authority to decide the claims of the appellants afresh - appeal allowed by way of remand.

Summary

Issues:
Appeal against orders rejecting refund claims under Notification No.41/2007-ST for service tax paid on various services in connection with export of goods.

Analysis:
1. Grounds for rejection: The refund claims were rejected on various grounds by the lower authorities, leading to the appeals. The claims were examined based on legal provisions, facts submitted by the appellants, and relevant case laws.

2. Rejection on C & F Agent services: Refunds for service tax paid for availing services from a C & F Agent were rejected. However, a Board clarification stated that such refunds do not require verification of the service provider's registration certificate. The rejection on this ground was deemed unsustainable.

3. Rejection on port services: Claims related to Terminal Handling Charges, documentation charges, etc., were rejected due to lack of evidence of payment under the category of "port services." However, previous tribunal decisions and a High Court ruling established that these charges fall under port services, making the tax paid on them eligible for refund.

4. Rejection based on limitation: A claim was rejected as it was filed beyond the specified time limit. The Tribunal clarified that the right to claim refund crystallizes upon payment of service tax, and the limitation period should be calculated from that date, as established in relevant case laws.

5. Rejection related to sister unit: Claims pertaining to a sister unit were rejected, but the appellants argued that the CHA services were common to both units, supporting their eligibility for service tax refunds. The linkage of service tax payment to the clearance of export goods from the relevant unit needed verification.

6. Failure to furnish invoices: Some claims were rejected due to missing invoices, although the appellants claimed they provided necessary documents to the Commissioner (Appeals) for scrutiny, indicating they possessed all supporting documents.

7. Export made by Merchant Exporter: An export claim was rejected on the basis that the export was made by a Merchant Exporter, not the appellant. However, since the appellants paid for CHA services and suffered service tax on the specified services, they were deemed eligible for refund.

8. Rejection of inspection and certification services: Claims for inspection, certification, and technical testing services were rejected due to lack of supporting evidence. The appellants provided agreements and bills linking service tax payment to export cargo, requiring verification.

9. Rejection of Customs House Agent services: Claims related to services from Customs House Agents were rejected due to insufficient details. The appellants argued that all necessary details were available in the documents submitted, and the linkage to service tax payment and export cargo could be established.

10. Conclusion: The Tribunal found that the Original Authority did not examine the claims properly before rejection. The matter was remanded back to the Original Authority for a fresh decision in line with the observations made, allowing the appeals by way of remand.