2018 (11) TMI 1218 - AT - Service Tax

Refund of service tax on inputs - inputs used for provision of export services - Rule 5 of CENVAT Credit Rules, 2004 - Held that - Revenue has not disputed the payment of Service Tax on the input services used by the appellant for its export of service. From a perusal of Order-in-Original as also the impugned Order-in-Appeal, it is not their case that refund was denied because of violation compliance or violation of conditions of Rule 5 of CCR. The only reason for the denial of refund by the Revenue is on the allegation that the export proceeds were received by the appellant s successor, i.e. realised by its successor at Italy - from the case of National Engg. Industries Ltd. Versus Commr. of C.EX., Jaipur 2007 (12) TMI 170 - CESTAT, NEW DELHI , it is clear that the receipt of export proceeds in Indian currency, in lieu of Foreign exchange, even makes it sufficient to be considerd as receipt of foreign currency, in India. Article 265 clearly rules that there cannot be collection of tax without authority to Law, so also, the revenue should justifiably prove its authority to reject refund and retain, when clearly the amount did not belong to it, but to another. Refund allowed - appeal allowed - decided in favor of appellant.

Issues:
1. Claim for refund of service tax inputs used for provision of export services.
2. Rejection of refund claim by the adjudicating authority.
3. Appeal against rejection order before the Commissioner of Service Tax (Appeals-I), Chennai.

Issue 1: Claim for refund of service tax inputs used for provision of export services

The appellant, engaged in Information Technology Software Services, entered into a Business Transfer Agreement (BTA) with a company in Italy for a slump sale. The appellant claimed a refund of service tax inputs used for export services rendered from 01.01.2010 to 14.02.2010 under Rule 5 of CENVAT Credit Rules, 2004. The Assistant Commissioner issued a Show Cause Notice questioning the refund claim, alleging non-compliance with Section 73(1) and Rule 14 of the CENVAT Credit Rules, 2004.

Issue 2: Rejection of refund claim by the adjudicating authority

The adjudicating authority rejected the refund claim, contending that the export proceeds were received by the appellant's successor in Italy, not in convertible foreign currency, thus not qualifying as an export of service. The Commissioner (Appeals) upheld this rejection without citing any documentary evidence. The appellant argued that the transaction was wrongly credited to an Italian account, maintaining that the export proceeds were realized in India. The appellant's consultant provided evidence to support this claim, emphasizing compliance with the BTA terms.

Issue 3: Appeal against rejection order before the Commissioner of Service Tax (Appeals-I), Chennai

During the appeal hearing, the appellant's consultant presented the BTA, relevant notifications, and bank documents to refute the Revenue's stance on non-receipt of Foreign Inward Remittance Certificates (FIRCs). The appellant's business transfer as a going concern, including assets and liabilities, was highlighted. The Tribunal noted that the Revenue did not contest the service tax payment on input services for export. The rejection was solely based on the assumption that the export proceeds were received by the successor in Italy. The Tribunal referenced a similar case to emphasize that receiving export proceeds in Indian currency suffices as foreign exchange receipt. It criticized the lower authorities for rejecting the refund claim on assumptions, without challenging the business transfer or service location.

In conclusion, the Tribunal set aside the rejection order, allowing the appeal for refund with consequential reliefs. The judgment emphasized the importance of substantiating refund denials with valid grounds and evidence, ensuring compliance with statutory provisions and upholding the principles of tax collection authority.

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