2017 (9) TMI 78 - AT - Service Tax

Refund of service tax on GTA services - N/N. 41/2007-S.T. - C.B.E. & C. Circular No. 120/01/2010-S.T., dated 19-1-2010 - Held that - circular conveys that in budget 2009 the scheme under N/N. 41/2007-S.T. was simplified in N/N. 17/2009-S.T. by providing self certification or Chartered Accountant s certification about co-relation and nexus between input Services & the exports. That above logic can be followed for N/N. 5/2006-C.E. (N.T.) where such simplification of N/N. 17/2009-S.T. may not be available - As the benefit of C.B.E. & C. Circular dated 19-10-2010 were not available before the adjudicating authority, the matter is remanded back to the Adjudicating authority to decide the matter on the basis of Chartered Accountant s certificate to establish the co-relation required under N/N. 41/2007-S.T. - appeal allowed by way of remand.

Summary

Issues:
1. Disallowance of refund on education cess and S & HE Cess
2. Disallowance of refund of service tax on GTA service
3. Rejection of claim on limitation ground and refund related to port services/testing and analysis

Analysis:
1. The appellant filed an appeal against the order modifying the disallowance of refunds on education cess, S & HE Cess, and service tax on GTA service. The appellant argued that no conditions were specified for refund of GTA Services under Notf. No.41/2007-S.T. The consultant emphasized the difficulties faced by exporters of bulk cargo and relied on case laws where similar refunds were allowed. The Revenue contended that the C.B.E. & C. clarification dated 19-1-2010 did not apply to Notf. No.41/2007-S.T. The Tribunal noted that similar refunds were allowed previously and remanded the matter for fresh consideration, emphasizing the need for self-certification or Chartered Accountant's certification to establish the required correlation.

2. The Tribunal observed that in a similar case, exports were transported from the factory to the port for shipping, requiring aggregation at the port premises. The Tribunal set aside the lower authorities' orders denying refunds and remanded the matter for reconsideration, emphasizing the need to broadly correlate evidence of transport and service tax paid with the quantity exported. The Tribunal referred to C.B.E. & C. Circular No.120/01/2010-S.T., dated 19-1-2010, which simplified the refund process by allowing self-certification or Chartered Accountant's certification for establishing correlation.

3. The Tribunal acknowledged the simplification of the refund scheme under Notf. No. 41/2007-S.T. in Notf. No. 17/2009-S.T. and directed the adjudicating authority to decide the matter based on the Chartered Accountant's certificate to establish the required correlation. The Tribunal allowed the appeal by remanding the matter to the Adjudicating authority specifically for the refund of GTA Services, based on the principles outlined in the C.B.E. & C. Circular and the case laws cited by the appellant. An opportunity for a personal hearing was also directed to be provided to the appellant for further explanation.

In conclusion, the Tribunal allowed the appeal by remanding the matter for fresh consideration, emphasizing the importance of self-certification or Chartered Accountant's certification to establish the correlation required for refunds under Notf. No. 41/2007-S.T.