To

The Assistant Commissioner

Central Excise

--------------

Sir,

Subject: Request for allowing amendment in Refund Application

dated----------

Kindly refer to Refund Application dated------ filed by us for Refund of Service

Tax of Rs-------------

It is prayed that the Refund Application may be allowed to be amended and the
following grounds for claiming refund may be allowed to be added in Refund
Application dated------

Grounds for claiming refund:

Para 6A- The service tax cannot be levied twice on the same activity (ocean
freight component) as the value of ocean freight amount is already included in
value of imported goods on which Customs duty and CVD has already been
paid. Hence there cannot be double taxation.

Further, when the value of ocean freight is treated as part of value of goods by
Customs Authorities; the same value cannot be considered as service under the
Finance Act, 1994.

Moreover, no service was received by us and hence Section 66A of the Finance
Act, 1994 for levy of service tax under reverse charge is not applicable in this
case. The attention is invited to the provisions of Section 66A of Finance Act,
1994 cited below:

SECTION 66A.Charge of Service Tax on Services received from outside

India
(1) Where any service specified in clause (105) of section 65 is,—
(a) provided or to be provided by a person who has established a
business or has a fixed establishment from which the service is provided
or to be provided or has his permanent address or usual place of
residence, in a country other than India, and
 (b) received by a person (hereinafter referred to as the recipient) who
has his place of business, fixed establishment, permanent address or
usual place of residence, in India,
such service shall, for the purposes of this section, be taxable service, and
such taxable service shall be treated as if the recipient had himself provided
the service in India, and accordingly all the provisions of this Chapter shall
apply:
Provided that where the recipient of the service is an individual and such
service received by him is otherwise than for the purpose of use in any
business or commerce, the provisions of this sub-section shall not apply:
Provided further that where the provider of the service has his business
establishment both in that country and elsewhere, the country, where the
establishment of the provider of service directly concerned with the
provision of service is located, shall be treated as the country from which
the service is provided or to be provided.
(2) Where a person is carrying on a business through a permanent
establishment in India and through another permanent establishment in a
country other than India, such permanent establishments shall be treated as
separate persons for the purposes of this section.
Explanation 1.— A person carrying on a business through a branch or
agency in any country shall be treated as having a business establishment
in that country.
Explanation 2.—Usual place of residence, in relation to a body corporate,
means the place where it is incorporated or otherwise legally constituted.

Firstly; the law does not vests any power to notify vide a Notification the
“importer” (a person other than receiver of service) liable to service tax.

In case of Govind Saran Ganga Saran Vs. Commissioner of Sales Tax

(1985-AIR-041) it was held by Supreme Court that one of the cannons of
taxation is that there must be clear indication of the person on whom the
levy is imposed and who is obliged to pay tax. If this component is not
fulfilled, the Supreme Court held that “it is difficult to say that the levy
exists in point of law”.

Section 66B of Finance Act 1994 provides for levy of service tax on the
value of all services other than those services specified in the negative list,
provided or agreed to be provided in taxable territory by one person to
another. In the present case, the services are provided as well as received in
non-taxable territory and therefore, not liable for service tax as service
provider and service receiver both are outside India and hence in non-
taxable territory.

Since service tax of Rs----------- has been wrongly paid by us; the refund of
service tax paid is admissible.

Thanking You,

Yours Faithfully,

M/s …………………

( Authorised Signatory)