2016 (11) TMI 873 - AT - Service Tax

Successful appeal leads to fresh decision on refund claims, emphasizing evidence and legal provisions

The Tribunal allowed the appeals by remanding the cases back to the original authority for a fresh decision based on the observations and merits presented ... Rejection of Refund claim - export of services - N/N. 41/2007-ST dated 6/10/2007 - drawback availed - Held that: - as regard the rejection of claim on the ground that the appellant have availed drawback, the lower authority have not considered the amendment vide Notification No. 33/2008 dated 7/12/2008 wherby condition as specified under clause (e) of para 1 has been deleted w.e.f. 7/12/2008 therefore even though the appellant have availed the drawback refund cannot be rejected on this ground. Despite availability of the relevant documents, lower authority have rejected their claim with contention that co-relation was not established and documents were not submitted, I therefore allow the appeal by way of remand to the original adjudicating authority to pass a fresh order in respect of claim which was rejected, taking into consideration of my above observations on the facts and merits of the case - Appeals allowed - matter remanded. Issues:Refund claim rejection based on various grounds under Notification No. 41/2007-ST dated 6/10/2007 for services used in export of goods.Analysis:1. Drawback Claim Issue:The appellant claimed refund under Notification No. 41/2007-ST but faced rejection partly due to drawback claim. The appellant argued that the condition of drawback claim was deleted in Notification No. 33/2008 dated 7/12/2008. They clarified that they opted for DEPB till 30/9/2011 and switched to duty drawback from 1/10/2011 after DEPB abolition. The Tribunal agreed that refund cannot be denied based on drawback claim as per the amended notification.2. Terminal Handling Charges Issue:The rejection of refund for Terminal Handling Charges was disputed by the appellant. They provided invoices for input services and exports, emphasizing that Terminal Handling Charges are part of port services and thus eligible for refund. The Tribunal supported this argument citing relevant judgments.3. CHA Services Issue:Regarding CHA services, the appellant contended that even if individual services like conveyance and fax are miscellaneous, when provided by a CHA, they constitute CHA services. They referenced a judgment to support their claim. The Tribunal agreed that the rejection of CHA service refund was incorrect.4. Technical Testing & Analysis Issue:For Technical Testing & Analysis services, the appellant demonstrated the necessity of such services for perishable food exports. They provided evidence of co-relation between service invoices and exported goods. The Tribunal found the refund claim valid for these services.5. Courier Services Issue:The appellant established co-relation between courier services and export invoices, disputing the rejection based on lack of evidence. The Tribunal acknowledged the evidence provided and upheld the refund eligibility for courier services.6. Banking and Financial Services Issue:Regarding Banking and Financial Services, the appellant proved the relationship between services and inward remittance of export proceeds. The Tribunal emphasized that if documents show payment of service tax, refund should be granted.7. Overall Decision:The Tribunal observed that despite the availability of relevant documents, the lower authority wrongly rejected refund claims citing lack of co-relation. The Tribunal allowed the appeals by remanding the cases back to the original authority for a fresh decision based on the observations and merits presented during the appeal.In conclusion, the Tribunal found in favor of the appellant on various grounds, emphasizing the importance of considering all evidence and legal provisions before rejecting refund claims.