2025 (6) TMI 683 - AT - Service Tax

Entitlement to refund of service tax paid under the Business Auxiliary Service (BAS) - export of service under the Export of Services Rules - exigible to service tax - discrepancies in the refund claim - instructions issued by CBIC in the CBIC Excise Manual 2005 - HELD THAT - As per the learned Counsel for the appellant the services rendered by the appellant fall in the definition of export of services and therefore it was not subject to service tax but the appellant had paid service tax wrongly and later on the appellant came to know about this mistake and then filed refund claim which was rejected by the authorities below. Further we find that in the present case the appellant is seeking the refund of Rs.51, 83, 156/- paid under Section 11B of the Central Excise Act as made applicable to service tax in terms of Section 83 of the Finance Act. We also find that the appellant had filed the service tax returns and showed that they had paid the service tax under the category of BAS but those self-assessed service tax returns had not been modified by them before filing the refund application. Further we find that the identical issue has recently been considered by the Principal Bench of this Tribunal in the case of Kalyan Toll Infrastructure Ltd. 2024 (5) TMI 369 - CESTAT NEW DELHI wherein the Tribunal has rejected the appeal of the assessee by following the judgment of the Hon ble High Court of Delhi in BT (India) Pvt Ltd. 2023 (11) TMI 478 - DELHI HIGH COURT case. Further we find that the judgment of the Hon ble High Court of Delhi in BT (India) Pvt Ltd (supra) s case has now been upheld by the Hon ble Apex Court vide its order dated 09.12.2024 wherein the Hon ble Apex Court has disposed of the Special Leave Petition of the department in terms of the decision in ITC Ltd vs. CCE Kolkata-IV 2019 (9) TMI 802 - SUPREME COURT (LB) . Thus we find that the ratio of judgment of Hon ble High Court of Delhi in BT (India) Pvt Ltd (supra) s case clearly applies in the present case. Therefore by following the ratio of the said judgment we are of the considered view that the appellant is not entitled to refund; accordingly we uphold the impugned order and dismiss the appeal of the appellant.

Summary

The core legal questions considered in this appeal revolve around the entitlement to refund of service tax paid under the Business Auxiliary Service (BAS) category, specifically:

1. Whether the services rendered by the appellant qualify as export of services under the Export of Services Rules, thereby exempting them from service tax liability.

2. Whether the appellant is entitled to a refund of service tax paid under the reverse charge mechanism, given the classification of services and the applicable legal provisions.

3. Whether refund proceedings can be used to modify or re-assess a self-assessment made by the appellant in their service tax returns.

4. The procedural propriety of the refund claim rejection, including the timing and issuance of the Deficiency Memo.

Regarding the qualification of services as export of services, the appellant contended that the services fall under BAS as defined under Section 65(105)(zzb) of the Finance Act, 1994, and specifically under category (iii) of the Export of Services Rules effective from 27.02.2010. The two essential conditions for export under this category are: (i) the recipient of the service is located outside India, and (ii) payment is received in convertible foreign exchange. The appellant asserted both conditions were met, supporting their claim that the service tax paid was not exigible and thus refundable.

The respondent, however, argued that the services provided, including transportation, travel, and hotel arrangements, fall under category (ii) of the Export of Services Rules, which requires the service to be performed outside India to qualify as export. Since the services were performed within India, the respondent maintained they were taxable and not eligible for refund. Additionally, the respondent emphasized that the appellant had self-assessed and paid service tax without claiming exemption under the relevant notification, and since the assessment was not modified or challenged before the Commissioner (Appeals), refund proceedings cannot be used to alter the assessment.

The Tribunal examined the relevant legal framework, including Section 11B of the Central Excise Act, 1944 (as applicable to service tax via Section 83 of the Finance Act), the Export of Services Rules, and judicial precedents concerning refund claims and self-assessment. The Tribunal relied heavily on the Supreme Court's ruling in ITC Ltd. vs. Commissioner of Central Excise, Kolkata-IV, which clarified that refund proceedings are execution proceedings and cannot be used to modify or re-assess an existing assessment, including self-assessment. The refund claim must conform to the original assessment unless it has been modified through proper channels.

Further, the Tribunal referenced a recent decision by the Principal Bench of the Tribunal in a similar case, which upheld the principle that self-assessed service tax returns, if unmodified, bind the assessee and preclude refund claims that contradict the self-assessment. The Tribunal also noted the High Court of Delhi's decision in BT (India) Pvt. Ltd., which affirmed the applicability of the ITC Ltd. principle to service tax matters, a position subsequently upheld by the Supreme Court in disposing of the department's Special Leave Petition.

On the procedural aspect, the appellant argued that the Deficiency Memo was issued after an inordinate delay of nearly three years, contrary to CBIC instructions requiring issuance within 15 days, and that the authorities exceeded the scope of the Deficiency Memo and show cause notice. The appellant contended this procedural lapse invalidated the refund rejection. However, the Tribunal did not find this argument sufficient to override the substantive legal principle regarding the non-modification of self-assessment through refund proceedings.

In applying the law to the facts, the Tribunal observed that the appellant had declared and paid service tax under BAS without claiming exemption at the time of filing returns. Since no modification or appeal against this self-assessment was pursued, the refund claim effectively sought to alter the original assessment via refund proceedings, which is impermissible. The Tribunal thus rejected the appellant's contention that the services qualified as export and were not taxable, holding that the refund claim was not maintainable.

The Tribunal also addressed competing arguments regarding the classification of services and the interpretation of export rules, concluding that the performance of services within India disqualifies them from export of services under category (ii) of the Export of Services Rules, as relied upon by the revenue. The appellant's reliance on category (iii) was not accepted in light of the facts and the self-assessment record.

Significant holdings include the following verbatim excerpts from the Tribunal's reasoning:

"Refund proceedings are in the nature of execution proceedings and they cannot modify an assessment including self- assessment. Refund can only be sanctioned or denied as per the assessment- be it self-assessment by the assessee or the best judgment assessment by the officer."

"The order of the Larger bench of this Tribunal in Balaji Warehouse interpreting the applicability of ITC Ltd. to service tax matters relied upon by the appellant has been clearly overturned by the High Court of Delhi in BT (India) Pvt. Ltd. Clearly, ITC Ltd. applies to service tax matters also."

"Since the appellant had self-assessed service tax without applying the notification and the assessment has not been modified, it cannot be modified now in the refund proceedings. As per the self-assessment, the appellant was not entitled to the refund."

The core principles established are:

- Export of services must satisfy the conditions laid down in the Export of Services Rules, including the location of service performance and recipient, to qualify for exemption from service tax.

- Self-assessment of service tax, once filed and unmodified through appeal or reassessment, is binding and cannot be altered through refund proceedings.

- Refund proceedings are execution proceedings and do not permit re-assessment or modification of the original tax liability.

- Procedural irregularities such as delayed issuance of Deficiency Memo do not override substantive legal principles governing refund claims.

On the final determinations:

- The appellant's services do not qualify as export of services under the applicable rules since the services were performed within India.

- The refund claim filed by the appellant is not maintainable as it seeks to modify an unmodified self-assessment.

- The impugned order rejecting the refund claim is upheld, and the appeal is dismissed.