2009 (7) TMI 124 - AT - Service Tax

Refund of service tax export goods applicability of provisions of section 11B of Central Excise Act, 1944 - Notification No. 41/07-ST, dated 6-10-2007 documentary evidence held that - In any case, the documentary evidences showing the collection of Service Tax from the appellant would meet the requirement of the law and the appellants cannot be expected to produce evidence to show that the service provider has actually deposited the dues with the Government. I find that in the Budget of 2009, the difficulties being faced by the exporters for refund of Service Tax, has been taken note of and a simplified scheme has been laid down. It is the intention of the revenue that the exporters get refund of the Service Tax. Any reason to delay in grant of such refund or to deny the same would be frustrative of the legislative intent. Refund allowed.

Summary

Issues:
Refund of Service Tax on export of goods denied on different grounds than those raised in show-cause notice.

Analysis:
The appellant claimed a refund of Service Tax paid on the export of goods, which was rejected by the authorities. The show-cause notice proposed denial of credit based on the services not being listed services. However, the original adjudicating authority rejected the claim because the service provider was not registered for the services under which the Service Tax was collected. The Commissioner (Appeals) rejected the appeal on the grounds of lack of evidence that the Service Tax collected was deposited to the Government account.

The proceedings were initiated on different grounds than those detailed in the show-cause notice. The Assistant Commissioner denied the refund based on the service provider not being registered for the services provided. The Commissioner (Appeals) rejected the appeal due to the absence of evidence showing the service provider had paid the Service Tax. The appellant met the grounds on which the refund was denied, as clarified by the Board that even if the service provider is registered for one service, the refund cannot be denied for taxable services not covered under the registration.

The absence of evidence on record regarding the service provider's payment of Service Tax was deemed as assumptions by the Commissioner (Appeals). The documentary evidence of Service Tax collection from the appellant sufficed to meet legal requirements, and the appellant was not expected to prove the service provider's deposit of dues to the Government. The legislative intent, as reflected in the Budget of 2009, aimed to simplify the refund process for exporters facing difficulties. Delaying or denying refunds would go against this intent. Therefore, the impugned order was set aside, and both appeals were allowed with consequential relief to the appellant.