2019 (2) TMI 870 - AT - Service Tax

Refund of service tax - export of service outside India - Section 66B of the Finance Act 1994 read with Rule 6A of the Service Tax Rules 1994 - Held that - This issue is no more ras integra and has been settled by the Larger Bench of this Tribunal in the case of Span Infotech Pvt. Ltd. 2018 (2) TMI 946 - CESTAT BANGALORE wherein it has been held that in case of refund pertaining to export of services under Rule 5 of CCR 2004 one year period is to be counted from the end of the quarter in which the FIRC is received. The impugned order remanding the case back to the Original Authority is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Time limit for filing refund claim in case of export of services.
2. Applicability of Section 11B in refund claims for export of services.
3. Legality of remanding the matter back to the Original Authority by the Commissioner (A).

Analysis:
1. Time limit for filing refund claim in case of export of services:
The appeal revolved around the time limit for filing a refund claim in the case of export of services. The appellant, engaged in IT enabled services, filed a refund claim for services exported outside India. The Department objected to the claim, citing that it was filed after the expiry of one year from the date of payment of Service Tax for certain input service invoices. The appellant contended that the time limit under Section 11B should be counted from the end of the quarter in which the FIRC is received, not from the date of payment of Service Tax. The Tribunal agreed with the appellant, citing the decision in Span Infotech Pvt. Ltd., holding that the one-year period for export of services refund claims is to be calculated from the end of the quarter in which the FIRC is received.

2. Applicability of Section 11B in refund claims for export of services:
The Tribunal found that the time limit prescribed under Section 11B was not applicable in the case of export of services, as settled by the Larger Bench in the Span Infotech Pvt. Ltd. case. The Tribunal noted that the Commissioner (A) did not consider this decision, which was specifically cited before him. By following the Larger Bench decision, the Tribunal concluded that the impugned order remanding the case back to the Original Authority was not legally sustainable. Consequently, the Tribunal set aside the remand order and restored the Order-in-Original granting the refund to the appellant.

3. Legality of remanding the matter back to the Original Authority:
The Tribunal determined that the Commissioner (A) should not have remanded the matter for denovo adjudication since the appeal by the Department was limited to only a part of the refund sanctioned. The Tribunal found that the impugned order remanding the entire matter to the adjudicating authority was not legally sustainable. Therefore, the Tribunal set aside the remand order and restored the Order-in-Original granting the refund to the appellant. The appeal was allowed in favor of the appellant.

This detailed analysis highlights the key legal issues addressed in the judgment, focusing on the time limit for filing refund claims in the context of export of services and the legality of remanding the matter back to the Original Authority.