2019 (11) TMI 537 - AT - Service Tax

Refund of service tax - benefit of N/N. 41/2007-ST dated 06.10.07 - rejection of refund on the ground that the appellant has not exported the goods, the services for which the refund claim has been filed i.e. transportation of goods from their factory premises to the port of export and terminal handling charges at port are not port services and the documents produced by the appellant are not in their name for availment of Cenvat credit. Denial of refund on the ground that the appellant has not produced the proof of export - HELD THAT - As it is a case of revenue that appellant has not exported the goods, in that case, the adjudicating authority was not required to go into the issue no. 2 3 and straight way could have rejected the refund claim as they have not exported the goods, but it is evidence on record that the appellant has filed the refund claim after export of the goods and the same is evident from the records placed before the authorities below while filing the refund claim but the adjudicating authorities below did not bother to see the documents filed by the appellant and in routine manner rejected the refund claim which is not appreciable. Denial of refund claim, on the ground that the services for which the appellant has availed Cenvat credit are not port services - HELD THAT - The appellant has availed cenvat credit of transportation services from their factory to the port of export and CHA services availed at port. Without availing the services, the appellant cannot export their goods, therefore, they paid their service tax and availed Cenvat credit and nowhere Cenvat credit has been denied to the appellant by way of adjudication, in that circumstances, at the time of claiming refund claim the same cannot be disputed - As these are input services for export of goods by the appellant as port services, the appellant is entitled to avail into claim refund. The another ground for denial of refund claim is that the invoices are not in the name of the appellant - HELD THAT - The appellant has availed the services and the availment of the services has not been challenged by the Revenue by any mode i.e by rejection of availment of service or by way of adjudication, nor the show cause notice has been issued for that, in that circumstances, at the time of claiming refund it cannot be said that the appellant has not produced the document whereas in the adjudication order itself, it has been recorded by the adjudicating authority that the appellant has been able to show indirectly that they have availed these services, therefore, refund claim cannot be rejected. Refund allowed - Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Denial of refund claim based on non-export of goods.
2. Dispute regarding availed input services for export.
3. Rejection of refund claim due to invoices not in the name of the appellant.

Issue 1: Denial of Refund Claim Based on Non-Export of Goods:
The appellant's refund claim under Notification No. 41/2007-ST was rejected primarily on the grounds of non-export of goods. The Tribunal noted that while the revenue claimed the appellant did not export the goods, evidence showed the refund claim was filed post-export. The adjudicating authorities did not review the documents proving export, leading to an unjust rejection. The Tribunal emphasized that the lack of export proof was the main reason for denial, and the claim could have been rejected solely on that basis without delving into other issues.

Issue 2: Dispute Regarding Availed Input Services for Export:
Regarding the availed input services for export, the appellant faced challenges as the services were questioned for not being classified as port services. The Tribunal clarified that the transportation services from the factory to the port of export and CHA services at the port were essential for the export process. Cenvat credit had been rightfully availed, and since the services were crucial for export, the appellant was entitled to claim a refund. The Tribunal referenced previous decisions to support the appellant's position and allowed the refund claim for transportation and port services.

Issue 3: Rejection of Refund Claim Due to Invoices Not in the Name of the Appellant:
An additional ground for denying the refund claim was the invoices not being in the appellant's name. However, the appellant had availed the services without challenge from the Revenue. The lack of direct challenge or rejection of service availing meant that the appellant's indirect demonstration of service usage was sufficient for the refund claim. The Tribunal overturned the rejection based on this ground, emphasizing that the appellant had shown they availed the services, and thus, the refund claim could not be dismissed solely due to invoice technicalities.

In conclusion, the Tribunal set aside the impugned orders and allowed the appeals filed by the appellant, providing consequential relief. The judgment highlighted the importance of considering evidence of export, acknowledging essential input services for export, and not dismissing refund claims based on technical invoice issues when service availing was established.