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PJ/Case Laws/2012-13/1540

Refund cannot be denied by classifying services at the recipient’s end.

Case:-  M/s ULTRATECH CEMENT LTD Versus COMMISSIONER OF CENTRAL EXCISE, BHAVNAGAR

 

Citation:-2013-TIOL-675-CESTAT-AHM

 

Brief Facts:- These two appeals are directed against Order-in-Appeal No.12 to 13/2011(BVR)/KCG/ COMMR( A)/Ahd , dt.24.01.2011. The briefly stated facts are that the appellants herein had filed an application for refund of the Service Tax paid by them on various services for export  of  goods.  The said refund was claimed under Notification No.17/2009-ST, dt.07.07.2009 for the period January 2010 to March 2010. The adjudicating authority sanctioned the refund claim but rejected an amount of Rs.96,019 /- and of Rs.6,936/-,  holding that  the services covering the rejected amounts have not  been provided in relation to export of goods. Aggrieved by such an order, the appellants preferred the appeals before first appellate authority.  The first appellate authority also  concurred  with  the  views  of  the adjudicating authority and rejected the appeals. Hence the present appeal.

Appellant Contentions:- The Appellant contention is that  the refund claim which has been  rejected by  the  lower  authorities were provided by  the service  provider  under  Technical Testing & Analysis service or Customs House Agent's service. It is his submission that the service provider has categorically stated in their tax invoice as to discharge of Service Tax under these two headings. It is his submission the lower authorities have further gone into the details and came to conclusion that  the Service Tax is paid on 'Our  Protecting Agency fees',  'Draft  Survey',  'Bunker Survey'  and coming to  conclusion  that  these  services  are  not  included for  the  refund under Notification No.17/2009, the  refunds have  been  rejected.  He would draw attention to the various  services  given  by  the  service  provider  which  indicate  that  the  service  provider  has discharged the Service Tax liability under the category of Technical  Testina & Analysis service. He would  rely  upon  the  decision  of  this  Bench  in  the  case  of  Akanksha  Overseas  -  2012-TIOL1305-CESTAT-AHM and in the case of Jollyboard Ltd - 2012-TIOL-1264-CESTAT-MUM.

Respondent Contentions:- Ld. Additional Commissioner (A.R.), on the other hand, would reiterate the findings of the lower authorities.

 

Reasoning of Judgment:-We have considered the submission from both the parties and perused the record, we find that the refund claims have  been  rejected by  the  lower  authorities only on  the  ground that  the  said services which have been provided by the service provider would not fall in the various services as mentioned in the Notification No.17/2009-ST. The  factual  matrix  of  the  case  is that  the  service  provider  has  provided the  services  and discharged the Service Tax liability on such services under the head Technical Testing and Analysis service and Customs House Agent's service. This point is further fortified by the certificates and the invoices which are annexed to the appeal memoranda. The entire exercise of the Revenue to reject the refund claim is non-starter in as much as it is settled law that the classification of the product or services at the recipient's end cannot be done by the authorities. In the case in hand, it is found that the classification of Technical Testing & Analysis and Customs House Agent's services are being sought to be classified under various other services and refund is sought to be rejected. This is not in consonance with the law which has been laid down by various judicial pronouncements. Tribunal finds that this view has been held by the Tribunal in the case of Akanksha Overseas (supra) and Jollyboard Ltd (supra). 

In view of the foregoing reasons and the judicial pronouncements, Tribunal hold that  the impugned order rejecting the refund claim of Rs.96 ,019 /- and Rs.6,936/- is unsustainable and liable to be set aside. The impugned order is set aside and the appeals are allowed with consequential relief.

 
                       

Decision:-  The appeals are allowed with consequential relief.

Comment:-It is a set thumb rule that refund cannot be denied to the assessee by resorting to classification of services done by the service provider as far as service tax on the services stands discharged by the service provider on the said services under the stated category.

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