AHMEDABAD, MAY 02, 2013: THE appellants 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. Inasmuch as it is the allegation of the Revenue that the services actually provided by the service provider are 'Protecting Agency fees', 'Draft Survey', 'Bunker Survey' and that these services are not included for refund under Notification No.17/2009-ST.

Since the lower appellate authority upheld the order of rejection, the appellant is before the CESTAT.

It is submitted that the impugned services in respect of which the refund claim has been rejected are the services provided under the head ‘Technical Testing & Analysis service' or ‘Customs House Agent' service and hence refund is not deniable. They also rely on the decisions in Akanksha Overseas - 2012-TIOL-1305-CESTAT-AHM & Jollyboard Ltd - 2012-TIOL-1264-CESTAT-MUM.

Revenue representative did not add anything to the order of the lower authorities.

The Bench observed -

"6. 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.

7. 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, I find 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. I find that this view has been held by the Tribunal in the case of Akanksha Overseas Akanksha Overseas (supra) and Jollyboard Ltd (supra)."

Holding that in view of the judicial pronouncements the order rejecting the refund claim is unsustainable, the Bench set aside the same and allowed the appeal with consequential relief.

(See 2013-TIOL-675-CESTAT-AHM)