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

PJ/Case Laws/2012-13/1540

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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PJ/Case Laws/2012-13/1540

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