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2017 (10) TMI 454 - AT - Service TaxRefund claim - classification of services - refund claims were filed claiming that the services provided by them is not maintenance and repair services but it is BAS - Held that - The two impugned orders however differ on the classification of the service. The order-in-appeal dated 07/12/2013 held that the said services are classifiable under BAS whereas the order-in-appeal dated 30/09/2013 held that the service is classifiable as maintenance and repair service. However, both the orders held that the services provided did not amount to export of service. It is seen that the order dated 12/07/2003 was not produced before the Commissioner (Appeals) during the personal hearing held on 08/12/2013 - matter on remand. Refund claim - time limitation - Held that - the refund claim for the period April 2008 to January 2010 was filed on 06/02/2013. If the limitation prescribes under Section 11B read with Section 83 of the Finance Act is applied the entire claim becomes barred by limitation - reliance placed in the case of Anam Electrical Manufacturing Co. 1997 (1) TMI 80 - SUPREME COURT OF INDIA , where it was held that even in the case of illegal levy, the limitation prescribed under Section 11B has to be followed and no extension can be granted - the claim filed by the appellant for the period April 2008 to January 2010 is fully time barred and claim for the period January 2010 to June 2012 filed on 26/11/2012 is partially time barred. Appeal allowed in part.
Issues Involved:
1. Classification of services provided by the appellant. 2. Rejection of refund claims based on the classification of services. 3. Rejection of refund claims based on the limitation period under Section 11B of the Central Excise Act, 1944. Issue-wise Detailed Analysis: 1. Classification of Services Provided by the Appellant: The primary issue revolves around whether the services provided by the appellant, M/s Sany Heavy Industry India Pvt. Ltd., should be classified under "Business Auxiliary Service" (BAS) or "Maintenance and Repair Service." The appellant argued that their services, which included after-sales advisory support for equipment sold by Sany Overseas (China and Hong Kong), should be classified under BAS. They relied on the decision in Paul Merchant Ltd. 2013 (29) STR 257 and other cases to support their claim. The Commissioner (Appeals) classified the services under BAS, but the order-in-original had differing views, with one order classifying it as BAS and another as maintenance and repair service. The Tribunal found that the services provided included "installation, training, demonstration, etc.," and thus, were not merely maintenance and repair services. The Tribunal concluded that the services were more in the nature of customer care services and merited classification under BAS. 2. Rejection of Refund Claims Based on Classification of Services: The refund claims were rejected partly on the grounds that the services did not amount to export of service. The Commissioner (Appeals) held that the services provided by the appellant to Indian customers of Sany Overseas did not qualify as export of service under Rule 3(1)(iii) of the Export of Service Rules. The Tribunal, however, noted that the appellant's services were hired by Sany Hong Kong and Sany China, both located outside India. The Tribunal found that the impugned order was contrary to the decision in Paul Merchant Ltd., which held that the recipient of the service is the person who requested or hired the service. Therefore, the Tribunal remanded the case for fresh consideration in light of this decision. 3. Rejection of Refund Claims Based on Limitation Period: The refund claims were also rejected on the grounds of being barred by the limitation period prescribed under Section 11B of the Central Excise Act, 1944. The appellant argued that there is no statutory time limit for claiming a refund when tax is paid inadvertently under a mistake of law. They cited several cases to support this argument. However, the Tribunal referred to the Hon’ble Apex Court's decision in Anam Electrical Manufacturing Co. - 1997 (90) ELT 260 (SC), which held that even in cases of illegal levy, the limitation period prescribed under Section 11B must be followed, and no extension can be granted. Consequently, the Tribunal found that the refund claim for the period April 2008 to January 2010, filed on 06/02/2013, was fully time-barred, and the claim for the period January 2010 to June 2012, filed on 26/11/2012, was partially time-barred. Conclusion: The Tribunal dismissed the appeal concerning the refund claim for the period April 2008 to January 2010 due to being time-barred. However, it allowed the appeal concerning the refund claim for the period January 2010 to June 2012 by way of remand, directing the lower authority to reconsider the case in light of the Tribunal's decision in Paul Merchant Ltd. The classification of services under BAS stands as the Revenue did not challenge this aspect.
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