Refund of Service Tax under Notification No. 41/2007-ST

PJ/Case Laws/2011-12/1147

Case: Amity Thermosets Pvt Ltd v/s Commissioner of C. Ex., Vapi

Citation: 2011 (22) STR 157 (Tri-Ahmd)

Issue:- Refund of Service Tax under Notification No. 41/2007-ST – application for refund filed under wrong form – substantive right cannot be denied on the ground that covering letter of refund claim is wrong.

Brief Facts:- Appellants filed 3 rebate claims in Form ASTR-2 under Rule 5 of Export of Service Rules, 2005 claiming rebate of service tax and cess paid on input service used for export of taxable service viz. Goods Transport Service on 09.05.2008.

Show cause notice was issued proposing to reject the said rebate claims on 12.01.2009. Before the Adjudicating Authority appellant-assessee submitted that they had due to ignorance filed their claim under wrong from. They intended to seek the rebate claim under Notification No. 41/2007-ST dated 06.10.2007 under which refund of service tax paid on certain specified services used in relation to export goods is admissible.

The Adjudicating Authority rejected the rebate claims on the ground that there was no export of service involved as the service tax paid in respect of GTA services availed by them was an ‘input services’.

Against this order, the appeal was filed to the Commissioner (Appeal) which was rejected. Hence, appellant is before the Tribunal.

Appellant’s Contention:- Appellant contended that refund claim was filed in a wrong form. Reliance was placed on the judgment in CCE v/s Nisha Chemicals [1986 (26) ELT 809 (Tri)] and it was submitted that the forms are meant to facilitate and not to act as hindrance. Reliance was also placed on decision in M/s National Iron Steel Co. Ltd [2003 (162) ELT 3 (SC)] wherein a view was taken that the refund claim has to be allowed from the date of filing appeal and not from the date on which a proper application was made.

Reasoning of Judgment:- The Tribunal noted that not only the wrong form was submitted but even the ground on which the refund claim is made was also wrong. It was noted that appellant had submitted in the application that they had exported Goods Transport Services and claimed refund, whereas in reality, they had exported excisable goods and they were claiming refund of service tax paid on GTA services. It was noted by the Tribunal that they had submitted the following details alongwith their application:

(i) Statement of Export, goods transport freight paid; (ii) Service Tax challan copy (Form GAR); (iii) Photocopy of Lorry Receipt (iv) Photocopy of Transporters Freight Bill; (v) Photocopy of ARE-1; (vi) Photocopy of Bill of Lading; (vii) Photocopy of Shipping Bill.

The Tribunal held that from the documents it is clear as to what was the refund being claimed for. It was noticed that during the time between filing of refund and of issuance of show cause notice, there was no proforma prescribed for filling of refund claim and therefore, what was required to be filed was only a letter with relevant details. The wrong statement appears to be clerical error.

The Tribunal agreed with the submissions of the appellant that substantive right cannot be denied on the ground that covering letter of the refund claim was wrong. This is rectifiable error. The judgments cited by the appellant were also held to be applicable.

Impugned order set aside. Matter remanded for hearing on merits of the case.

Decision:- Appeal allowed.

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