2016 (12) TMI 813 - AT - Service Tax

Tribunal directs reconsideration of refund claim for exported services under specific conditions

Richa & Co. Versus CCE, New Delhi

The Tribunal allowed the appeal by remand, directing the original authority to reconsider the refund claim under Notification No. 41/2007-ST for services ... Rejection of refund claim - N/N. 41/2007-ST dated 06.10.2007 - export of goods - Held that: - We note that the Notification No. 41/2007-ST dated 06.10.2007 stands amended by Notification No. 33/2008/ST dated 07.12.2008. The net effect of such amendment is that for the period prior to 7.12.2008, refund of Service Tax paid on the services used in the export of goods, will not be admissible wherever drawback has been claimed. After 7.12.2008, however, such claims would be admissible. Both sides agreed that there are exports made both prior 7.12.2008 as well as after this date. It has also been submitted that in many cases the exports have been made under advance licence where no drawbacks are admissible. Under these circumstances, we find that the issue needs to be remanded to the Original Adjudicating authority for denovo decisions - appeal allowed by way of remand. Issues:Refund claim rejection under Notification No. 41/2007-ST for services used in export of goods.Analysis:The appellant's refund claim under Notification No. 41/2007-ST for services used in exporting goods was rejected by the original authority for various reasons. Firstly, terminal handling charges were not covered under the specified services in the Notification. Secondly, claims for technical testing, analysis, inspection, certification, clearing, forwarding, CHA services, and courier services were rejected due to missing documentation like written agreements or relevant invoices. Additionally, the Service Tax paid on courier services was disallowed for lack of evidence linking them to exported goods. Claims for GTA services were rejected as they were not directly related to exporting goods from the place of movable to the port. Moreover, part of the claim was denied because drawback had been claimed for export goods, falling under the condition in the notification.The appellant argued for the refund, citing Tribunal decisions in their favor and the removal of the drawback requirement by Notification No. 33/2008-ST. They requested a remand for reconsideration based on previous Tribunal decisions and the varied export scenarios. The Departmental Representative supported the lower authorities' decision but agreed to remand the matter, emphasizing that refunds under Notification No. 41/2007 were not allowed if drawback had been claimed before 07.12.2008.The Tribunal noted the amendment to Notification No. 41/2007 by Notification No. 33/2008, specifying that refunds for Service Tax on exported goods were not admissible if drawback had been claimed before 07.12.2008. For exports post this date or under advance licenses without drawbacks, claims were permissible. As exports were made both pre and post 07.12.2008, the issue warranted a remand for fresh adjudication. Referring to previous Tribunal decisions, the Tribunal directed the original authority to consider all relevant judgments and provide a fair opportunity for the appellant to present arguments and documents. The appeal was allowed by remand, emphasizing a comprehensive review by the Adjudicating authority.