Regarding admissibility of Refund under Notification no.17/2009-ST

PJ/CASE LAW/2015-16/2976

Case-DURHAM SPINTEX & HOLDING P. LTD. Versus COMMR. OF S.T., AHMEDABAD

Citation-2015 (40) S.T.R. 565 (Tri. - Ahmd.)

Brief Facts-Appeal No. ST/174/2012-SM, filed by M/s. Dhurham Spintex &. Holding Pvt. Ltd., arises out of Order-in-Appeal No. 319/2011 (STC)/K. Anpazhakan/Commr.(A)/Ahd., dated. 21-12-2011, passed by the Commissioner (Appeals-IV), Ahmedabad. The appellant is a merchant exporter of goods holding Service Tax, Registration for discharging its service tax on GTA Service and filed a refund claim for Rs. 18,831/- in terms of Notification No. 17/2009-S.T., dated 7-7-2009 on services used by them for export of goods for the quarter April 2010 to June 2010. The Assistant Commissioner rejected the refund claim on the grounds that the conditions 2(i)(B), 2(i)(F) of Notification No. 17/2009-S.T. were not fulfilled by the claimant besides some services, for which refund claim was claimed, were not covered by the Notification No. 17/2009-S.T. Aggrieved with the Order-in-Original, the appellant filed appeal with the Commissioner (Appeals), who rejected appellant’s appeal vide impugned Order-in-Appeal on the ground that mandatory conditions of the said notification were not complied with by the appellant. The case was listed for hearing on 2-3-2013, 28-5-2013, 4-4-2014 and 16-5-2014. None appeared on behalf of the appellant. On going through the appeal papers, it is observed that the appellant has contended that the conditions 2(i)(B) and 2(i)(F) of Notification No. 17/2009-S.T. were not mandatory conditions, and that substantive benefit of refund could not be denied as the services, for which refund was claimed, were actually used in export of goods.

Appelants Contention-None appeared on behalf of the appellant.

Respondents Contention-On the other hand, Shri K.J. Kinariwala, ld. AR for the Revenue, argued that the lower authorities have correctly rejected appellant’s refund claim, as the mandatory conditions 2(i)(B) and 2(i)(F) of the said notification were not fulfilled by the appellant. He argued that there were many discrepancies in the refund claim as pointed out in the show cause notice, to which the appellant has not given satisfactory clarification in their reply to SCN. He argued that the appellant had claimed refund of service tax paid on GTA services under CHA service without complying with the conditions mentioned against these services in the Notification No. 17/2009-S.T. He further argued that the appellant sought refund of Business Auxiliary/Support Services, which were not specified services for refund under said Notification No. 17/2009-S.T.

Reasoning Of Judgement-Heard the ld. AR and perused the record. It is observed that the appellant had not complied with mandatory conditions 2(i)(B) and 2(i)(F) of the Notification No. 17/2009-S.T. as well as other conditions mentioned against GTA Service and CHA service of the said notification. They also find that Business Auxiliary/Support services were not covered by any entry in the said notification for the purpose of refund. The entire admissibility of refund claim is based on the procedural requirements and submission of reconciliation of documents under Notification No.17/2009-S.T. As appellant has failed to fulfill the procedural requirement, therefore, refund was correctly denied. In view of the above, the appeal is rejected.

Decision-Appeal rejected

Comment-The substance of the case is that the assessee is herein claiming the refund of service tax paid on the GTA Services interms of Notification No. 17/2009-S.T., dated 7-7-2009 on services used by them for export of goods.The appellant had not complied with mandatory conditions 2(i)(B) and 2(i)(F) of the Notification No. 17/2009-S.T. as well as other conditions mentioned against GTA Service and CHA service of the said notification. Appellant submittedthat such services are used by him in relation to export of goods and accordingly they claim that the substantive benefit i.e. refund could not be denied to them on ground of non fulfilment of procedures.
But Tribunal has not accepted the view of appellant on the ground that Notification No.17/2009-S.T. the entire admissibility of refund claim is based on the procedural requirements and submission of reconciliation of documents. And also the mandatory condition no.2(i)(B) wherein the exporter is required to registered with Export Promotion Council sponsored by the Ministry of Commerce or the Ministry of Textilesand 2(i)(F) where the certification from the exporter to the effect that the service to which the document pertains are used for export of goods and other conditions of GTA and CHA are not fulfilled by the assessee and also the Business Auxiliary/Support services for which the refund have been sought by the assessee were not specified services for refund under Notification No. 17/2009-S.T. And, because of these reasons the refund was correctly denied.

Prepared By-Neelam Jain

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PJ/CASE LAW/2015-16/2976

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