Refund under export service tax notification sustained where Revenue failed to prove excess payment or non-compliance with conditions.

A refund under Notification No. 41/2007-ST could not be denied merely on a new appellate assertion that service tax had been paid on 3% of FOB value of exported goods. The Tribunal found no material evidence in the show cause notice, adjudication order, appellate order, review order, or memorandum of appeal to establish the alleged excess payment or non-compliance with the notification conditions. Because the Revenue failed to substantiate the factual basis for reversal, the refund granted by the Commissioner (Appeals) was sustained.

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Issues: Whether the Revenue established that the refund claimed under Notification No. 41/2007-ST was inadmissible on the ground that service tax had been paid at 3% of FOB value of exported goods, contrary to the notification conditions.

Analysis: The appeal was founded on the assertion that the assessee had paid service tax on 3% of the FOB value and, therefore, the refund allowed by the Commissioner (Appeals) was contrary to Notification No. 41/2007-ST. However, the record before the Tribunal did not contain any material, evidence, or documentary support for that factual assertion. The show cause notice, adjudication order, appellate order, review order, and memorandum of appeal did not establish the alleged excess payment, and a bare assertion raised for the first time in appeal could not sustain reversal of the refund.

Conclusion: The Revenue failed to prove that the refund was contrary to the notification, and the assessee was entitled to retain the refund relief.

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