2016 (12) TMI 20

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....nd converted later to partnership firm. After changing in to partnership firm, it was converted in to 100% EOU. The appellants had not paid service tax on the sales commission agents service i.e., commission paid to foreign agent, for selling the export goods. The department entertained view that the said amount is chargeable to service tax under the concept of reverse charge mechanism. During the period February, 2012 audit was conducted and non-payment of service tax on the sales commission paid to foreign agent was pointed out by the department. The appellants paid the service tax and availed credit in their books of account. Being 100% EOU they could not utilize the credit and appellants filed the refund claim for refund of service tax ....

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....t have nexus with export goods is without basis. The second ground for rejection of refund is that the appellant did not produce the export documents for the period 2009 to 2011. The Ld. Counsel relied upon the Circular/D.O.F. No. 334/2010-TRU, dated 26.02.2010 which clarifies the position with refund claim filed for the accumulated credit for the past period. He also relied upon the judgments laid in Xilink India Technology Services Hyderabad Vs. CCE & ST, Hyderabad-IV [2016-TIOL-2087-CESTAT-Hyderabad] and Samvardhana Motherson International Ltd., Vs. CC & CE & ST, Noida [2015(11) TMI 166 CESTAT, New Delhi] and argued that credit is admissible and therefore the refund ought to be granted. The Ld. Counsel also submitted that the Commissione....

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....ant for the export of finished products. Therefore, I do not find any logic on the part of the department to deny the credit stating that these services have no nexus with goods exported. With regard to the issue whether the appellant is eligible for refund in respect of credit availed for earlier period, the D.O.F. No. 334/1/2010-TRU, dated.26.02.2010 clarifies the same, and is reproduced as under: Refund of accumulated CENVAT credit to exporters: Amendments in Notification No. 5/2006-C.E. (N.T.) 8.1. It may be recalled that a number of representations were received from exporters, especially the exporters of services regarding difficulties being faced in availing the benefit of refund of accumulated credit under the scheme prescribed....

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....leading to faster and fair settlement of the refunds claims, changes have been effected in Notification No. 5/2006-C.E. (N.T.). Some of the changes have been made retrospective so that the pending cases are also covered. Other changes are being brought in prospectively, and are aimed at assisting the Department officers in faster processing of refund claims. The retrospective amendments are contained in clause 73 of the Finance Bill, 2010 while the prospective changes are contained in Notification No. 7/2010-Central Excise (Non Tariff) dated the 27th February, 2010. Both these documents may be carefully read together for appreciating the full impact of the changes. The salient features of these changes are as follows: Retrospective chang....