By TIOL News Service

AHMEDABAD, SEPT 11, 2013: THE Appellant paid Service Tax as mandated by s. 66A of the FA, 1994 on the Commission paid to the agents who are staying abroad.

Since they are located in SEZ area, they claimed the refund of the ST paid in terms of NotificationNo.9/2009-ST dated 03.03.2009, which was allowed by the adjudicating authority.

On an appeal filed by the Revenue, the first appellate authority, concluded that the said Notification No.9/2009-ST grants refund of the amount of service tax utilised in SEZ area, if the same is paid under Section 66 of the Finance Act, 1994, while the appellant herein has paid the service tax under Section 66A of the Finance Act, 1994. In fine, the Commissioner (A) allowed the revenue appeal by setting aside the order of the adjudicating authority and, therefore, the appellant is before the CESTAT.

The Bench observed -

"…We find strong force in the contentions raised by the learned counsel that the provisions of Section 66A, were clarified as not a charging Section by itself but created a legal fiction to charge the services which were rendered to the service recipient in India. This clarification is given by the Board by a Circular No. 354/148/2009/TRU dated 16.07.2009. If the Board is of the view that Section 66A is not a charging Section by itself and the charging Section remains 66, in our view, taking a holistic approach towards the issue wherein it is not disputed that the appellant is situated in SEZ area, has paid the service tax and the goods are exported, denial of the refund claim to the appellant only on hyper technicalities, seems to be incorrect."

Taking a prima facie view that the appellant is eligible for the refund and the order passed by the Commissioner (A) seemed to be incorrect, the Bench held that the appellant had made out a case for wavier of the pre-deposit of the amount involved and, therefore, granted a stay in the matter.

(See 2013-TIOL-1344-CESTAT-AHM)