Export service tax refund depends on the drawback restriction period and whether the amendment applies prospectively.

Refund of service tax on specified export-related services was governed differently before and after the amendment to Notification No. 41/2007-ST by Notification No. 33/2008. For the pre-amendment period, the notification expressly barred refund where goods were exported under drawback claim, and the removal of that restriction was not retrospective, so refund was not admissible. For the post-amendment period, the drawback-based bar no longer applied, and refund could not be denied on that ground if otherwise admissible. The claims therefore had to be bifurcated, and the matter was remanded for fresh consideration of the eligible post-amendment refund.

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Issues: Whether refund of service tax paid on specified services used for export of goods was admissible where the exports had been made under drawback claim, and whether the deletion of the drawback restriction by amendment applied retrospectively.

Analysis: The refund claims covered periods both before and after the amendment of Notification No. 41/2007-ST by Notification No. 33/2008. For the period after the amendment, the drawback-based restriction no longer operated, so refund could not be denied on that ground if otherwise admissible. For the period before the amendment, the notification expressly barred refund where the goods were exported under drawback claim, and the deletion of that condition was held not to have retrospective effect. The refund claims therefore required bifurcation between the two periods.

Conclusion: Refund was not admissible for the pre-amendment period, while the post-amendment claims were to be considered separately. The matter was remanded to the adjudicating authority for bifurcation and fresh consideration of the eligible post-amendment refund.

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