By Puloma Dalal, Jayesh Gogri, Mandar Telang, Chartered Accountants
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Whether refund in respect of service tax paid on services exported in terms of Export of Service Rules, 2005 can be denied, if exporter service provider failed to file declaration required under Notification No. 12/2005? Held, No.
Facts:
The appellant was marketing agent of various printing machines in India supplied by its foreign supplier. It filed refund claim on 03-11-2008 in respect of service tax paid between the period from 13-04-06 to 09-02-07 under the category of “Business Auxiliary Service” on the ground that it was providing services as a commission agent to its foreign supplier and consideration in the form of commission in convertible foreign exchange. The appellant further contended that it was never liable to service tax under the category of “Business Auxiliary Service.”
Held:
The Tribunal held that, the services in the instant case constitute ‘export’ under Export of Service Rules, 2005 and hence, Rule 5 of Export of Service Rules, 2005 would be applicable. Non-filing of declaration vis-à-vis satisfying all the conditions under the said Rule 5 read with notification 12/2005-ST dated 19th April 2005 requires to be examined, the Tribunal referred to the judgment in the case of Manubhai & Co. vs. CST [Final Order No. A/1446/2010-WZB/Ahd., dated 17-9-2010 had clearly held that the requirement of filing of declaration is of procedural nature under notification and delay, if any, can be condoned. The Tribunal thus allowed refund claim file subject to the appellant filing declarations as required under the said notification read with Export of Service Rules, 2005 before the adjudicating authority.
