By TIOL News Service

MUMBAI, JUNE 24, 2014: THE appellants are exporters of goods and availed the services of Commission Agents located abroad. On the amounts paid to Commission agents they are paying service tax on reverse charge basis and availing CENVAT credit of the tax paid.

The CE officers who audited their unit suggested that the appellant should reverse the CENVAT credit and avail the exemption under Notification 18/2009-ST dated 7.7.2009.

Heeding to the advise of the Audit officers, the appellant reversed the CENVAT credit availed and filed a refund claim which was within the time limit prescribed. However, while filing the refund claim they mentioned Notification no. 17/2009-ST dt. 7.7.2009 instead of the correct notfn. 18/2009-ST. Incidentally, Notf. 17/2009-ST does not cover the services of commission agent.

The claim was rejected on the aforesaid ground without issuance of any SCN and without any personal hearing. The adjudicating authority also observed that in case of said service the assessee has to claim exemption from payment of service tax under notification no. 18/2009-ST dated 7.7.2009.

Having failed even before the Commissioner(A), the appellant is before the CESTAT.

It is submitted that they had committed an error in claiming the refund by citing the wrong notification.

The Bench observed that before rejecting the refund claim, no show-cause notice was issued to the appellants and even a personal hearing was not granted so that the appellants could rectify the mistake; that although the appellant had mentioned about the correct notification, even the Commissioner (Appeals) rejected the appeal on the ground that initially the claim was not under the correct notification.

The CESTAT held -

"…Keeping in view the facts mentioned above, the order of the Commissioner (Appeals) as also the order of the Asstt. Commissioner are set aside and the matter is remanded back to the original authority to examine the claim under Notification no. 18/2009-ST dated 7.7.2009. The original authority will consider the claim as if the claim under Notification no. 18/2009-ST dated 7.7.2009 was filed at the initial stage. If the appellants are eligible for refund under Notification no. 18/2009-ST dtd. 7.7.2009 and satisfy the conditions, the refund will be granted. However, keeping in view the fact that the appellants have not claimed the refund under notification, they will not be eligible for any interest for the intervening period…."

The appeals were disposed of.

In passing : Extraneous interest…

(See 2014-TIOL-1102-CESTAT-MUM)