9911796707
TMI Blog2011 (8) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mumbai. As per the contractual obligations, respondent herein paid commission to up-country party for organising and facilitating them to get the order for manufacturing of such ship. The respondent under the wrong impression that they are liable to pay service tax, paid an amount of Rs. 26,72,991/- as service tax along with education cess and higher education cess. Subsequently, on being informed that they are not required to pay such amount, they filed refund claim with the adjudicating authority. The refund claim was examined by the adjudicating authority and show cause notice was issued, proposing to reject the said claim. The respondent contested the show cause notice. Adjudicating authority did not accept the contentions raised by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax for the goods exported. It is also his submission that the assessee has failed to satisfy the conditions laid down in the notification, inasmuch as the commission paid/ payable was not indicated in the shipping bill and it is the major condition which the Learned Commissioner (Appeal) has brushed aside, stating that it is not mandatory. It is his submission that the impugned order is improper, illegal the same is erroneous and needs to be set-aside. 4. Learned counsel appearing on behalf of the respondents would draw our attention to the fact that the amount of service tax payable on commission given to the Commission Agent, was in fact paid on 05.12.2009 and 17.12.2009, which was reflected in the returns filed with the authorities for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission paid to a person situated abroad for procuring the order and the said service tax was paid in the month of December 2009. The respondent filed refund claim of such service tax paid, on 27.12.2009. It is also undisputed that there was a contract between respondents and Commission Agent for payment of commission. In sum the respondent herein paid service tax as recipient of the services, for the goods i.e. Ship, which was exported. 6. In this back ground, it is to be noted that the issue involved is, as to whether the respondent is eligible for benefit of exemption notification 41/2007-ST dated 06.10.2007, as amended by Notification No 17/2008-ST dated 01.04.2008 or not. Since we are concerned only with the service provided by Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t goods, outside India, (ii) exporter shall declare the amount of commission paid or payable to the commission agent in the shipping bill, (iii) commission sought to be remitted is not on export of a canalized item, project exports, or exports financed under lines of credit extended by Government of India or EXIM Bank, or exports made by Indian partners towards equity participation in an overseas joint venture or wholly owned subsidiary, (iv) documents evidencing actual export of goods, (v) documents evidencing actual payment of commission to the commission agent, (vi) refund of service tax shall be restricted to actual amount of service tax paid or service tax calculated on two per cent of FOB value of export goods, whichever is less. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit in respect of exports effected in the past is available to the manufacturer as well as provider of output service. Proviso to Rule 5 as it stood prior to the amendment on 14-3-2006 clearly provides that refund of unutilized credit is available to the manufacturer as also by the provider of output service subject to the conditions set out therein. As noted earlier the appellant fulfills all other conditions. Thus, reading the Rule 5 as it stood prior to its amendment, as a whole, it is evident that refund of unutilized credit is allowable not only to manufacturers but also available to providers of out put service. 8. As regards the grounds raised by the learned DR that assessee had not indicated the amount of commission paid on the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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