Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1049

Denial of Refund of ST on Technical Testing & Analysis for export of Goods-no written agreement- whether justifiable?

Case: TEXPORT INDUSTRIES P. LTD. versus COMMISSIONER OF SERVICE TAX,
 
Citation: 2011 (24) S.T.R. (Tri-Mum) 553
 
Issue:- Refund of Service Tax utilized for export of goods – whether can be denied only on ground that there is no written agreement between exporter and his buyer? Even when Letter of credit categorically provided for original inspection certificate issued by Associated Merchandise Corporation?
 
Brief Fact:- Appellant filed a refund claim for the input services used in export of goods under Notification No. 41/2007-ST as amended. The Adjudicating Authority rejected the refund claim for the service tax paid on technical testing and analysis service on the ground that the condition of the Notification that there should be a written agreement between exporter and buyer requiring testing and analysis for the said goods, was not fulfilled. In appeal, the Commissioner (Appeals) upheld the lower Adjudicating Authority's order.
 
Hence, appellant filed appeal before the Tribunal.
 
Appellant’s Contention:- Appellant contended that the Notification provides for refund of service tax paid on technical testing and analysis agency service to the condition that expert furnished a copy of written agreement entered with the buyer of the said goods requiring testing and analysis of the said goods. Appellant submitted that the letter of credit opened between their buyer PIL SRL and the designated bank dated 14-5-2008 which provide for the original inspection certificate. The letter of credit is opened by the bank only on the instructions of the customers.
 
In the rejoinder, appellant submitted that the case law submitted by the Revenue related to Central Excise duty and not to export. For export, a liberal view is to be taken and they relied on Tribunal's decision in the case of CST, Delhi v. Convergys India P. Ltd. - 2009 (16) S.T.R. 198 (T).
 
Respondent’s Contention:- Revenue submitted that for claiming the benefit of exemption Notification the condition prescribed have to be strictly followed. The appellant have failed to produce any written agreement therefore they are not eligible for the Notification. In support of their contention, Revenue placed reliance on the Supreme Court's decision in the case of Eagle Flask Industries Ltd. v. C.C.E. - 2004 (171) E.L.T. 296 (S.C.) wherein it was held that non-observance of the condition of the Notification the benefit of exemption is to be denied and also on the Supreme Court's  decision in the case of C.C.E. v. Mahaan Dairies - 2004 (166) E.L.T. 23 (S.C.) and Hotel Leela Venture Ltd. v. C.C.E., Mumbai - 2009 (234) E.L.T. 389 (S.C.) wherein  similar view was held.
 
Reasoning of Judgment:- The Tribunal noted that it is undisputed fact that appellant have paid the service tax on technical testing and analysis and they have exported the goods. They also provided Sr. No. 46A of the letter of credit which categorically provide for the original inspection certificate issued by the Associated Merchandise Corporation. The lower Authorities have denied refund only on the ground that there is no written agreement between the exporter and his buyers. The Commissioner (Appeals) did not accept it on the ground that this cannot be treated as agreement since it is between banks and not between concerned parties.  The contention of Appellant that the letter of credit is opened by the bank only on the instructions of customers agreed with & also agreed with the contention of the appellant that a liberal view has to be taken for the interpretation to reduce the cost of goods exported. The Tribunal agreed that the case laws cited by the Revenue does not relate to export.
 
It was noted that the Tribunal in the case of Convergys India had held that "The document based verification can be at a latter point of time. In this case, we are concerned only about rebate of credit on input services. The non-observation of procedural condition in this case is of a technical nature and cannot be used to deny the substantive concession. Further, in respect of export, liberal view requires to be taken. The non-fulfilment of the procedure cannot lead to denial of the benefit under the beneficial legislation providing for export benefits. Further, it is also a settled principle that taxes cannot be exported.  In view of the above, the Tribunal set aside the Commissioner (Appeals)'s order. 
 
Decision:- Appeals allowed.
 
Comment:- This is a very important decision as the department is not giving refund on technical testing on this ground only. But the later notification has deleted this condition. But the earlier notification has provided this condition. The logic behind this condition is not understandable. No exporter will incur extra cost of testing unless and until it is required by buyer. Even though the department is refunding the service tax but the exporter has to pay the amount along with service tax to service provider. Hence, there was no logic in this condition and it is rightly deleted from the Notification.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com