2023 (4) TMI 215 - AT - Service Tax

Refund of Service Tax paid on the services exported under Notification No. 11/2005-ST dated 19.04.2005 - whether refund can be rejected without putting the appellant on notice for the ground on which refund was rejected - date of export of service - HELD THAT - Insofar as the rejection of refund of Rs.13, 77, 971/- is concerned the appellant were not issued with a show cause notice for the ground on which the same was rejected. The appellant did not get opportunity to present their case. Therefore that part of the order is not sustainable since the appellant could not present their case and adjudicating authority has made up his mind without taking into consideration the facts and contention of the appellant on the issue. Insofar as the rejection of refund of Rs. 27, 33, 267/- is concerned it is to be examined whether the export took place on 30.06.2012 or after that. It is crucial to examine the issue because after 01.07.2012 the said Notification No. 11/2005-ST did not have force of law. The notification states that the services should be exported in terms of Rule 3 of Export of Service Rules 2005 to be eligible to avail the benefit of said notification - Taking the relevant invoice into consideration which was raised on 30.06.2012 it is very clear under the said Rule 3 of Export of Service Rules 2005 that export of service was provided on 30.06.2012. The said Notification No. 11/2005-ST was applicable to the appellant for the subject export - the impugned order is set aside - appeal allowed.

Summary

Issues:
The issues involved in this case are the rejection of refund without proper notice and the determination of the date of export of service.

Rejection of Refund without Proper Notice:
The appellant filed a claim for refund of Service Tax paid on services exported under Notification No. 11/2005-ST. The show cause notice issued to the appellant did not mention the rejection of a specific amount of Rs. 13,77,971. The appellant argued that since they were not notified about this specific rejection, they were unable to present their case, thus violating the principles of natural justice. The Tribunal held that this part of the order was not sustainable as the appellant was not given an opportunity to explain their position.

Date of Export of Service:
Regarding the rejection of another amount of Rs. 27,33,267, the key issue was determining the date of export of service. The notification in question required the export to take place in accordance with Rule 3 of Export of Service Rules, 2005. The appellant contended that the export, supported by an invoice raised on 30.06.2012, was completed on the same day. The Tribunal analyzed the relevant rules and concluded that the export of service indeed occurred on 30.06.2012, making the appellant eligible for the refund under the said notification. Consequently, the Tribunal set aside the impugned order and allowed the appeal.

In conclusion, the Tribunal allowed the appeal based on the findings related to the rejection of refund without proper notice and the determination of the date of export of service.