Case Law Details

Case Name : Cap & Seal (Indore) (P) Ltd. Vs. CCE (CESTAT Delhi)
Appeal Number : Appeal No. ST/1578/2010-ST(SM)/DEL
Date of Judgement/Order : 04/10/2016
Related Assessment Year :
Courts : All CESTAT (604) CESTAT Delhi (193)

No separate freight has been mentioned on the bills raised by the transporter for transportation of goods from Pithampur to Port of Export. Rather, the invoice issued by the service provider mentioned the claim of to and fro freight charges. Since the freight charges are in connection with transporta­tion of export goods, in absence of any specific prohibition contained in Notification No. 41/2007, the benefit of refund should be available to the appellant. In this context, the Tribunal in the case of M/s. Garware Polyester Ltd. (supra) has allowed the refund claim, holding that service tax paid on transport of empty containers from the yard to the factory is admissible as refund.

Full Text of the CESTAT Order is as follows:-

Rejection of refund claim filed under Notification No. 41/2007-S.T., dt. 6-10-2007, as amended is the subject matter of present dispute. The learned Commissioner (Appeals) vide the impugned order dated 6-8-2010 has denied the refund benefit on the ground that though, to and fro freight charges have been claimed by service provider, no separate freight has been mentioned on the bills from Pithampur to port of export; that the service charges, namely, THC, BL charges, Inland Haulage Charges, documentation charges, SB, Pallitization charges, Handling charges and weighment charges, claimed under CHA service by the appellant are not covered under the said category of service; that part of the refund claim is barred by limitation of time.

2. Shri Manish Saharan, the learned Advocate appearing for the appellant submits that the expression in relation to transport of goods appearing in Notifi­cation No. 41/2007 is broad enough to cover even transport of empty container from the port to the factory for the purpose of stocking of export goods. Thus, he submits that to and fro freight charges claimed by the appellant should merit consideration for refund, for the reason that the goods have been exported by the appellant. To support such stand, the learned Advocate has relied on the decision of the Tribunal in the case of M/s. Garware Polyester Ltd. v. CCE, Aurangabad 2012 (27) S.T.R. 288 (Tri.-Mum.). He further submits that THC, BL charges, Inland Haulage Charges, documentation charges, SB, Pallitization charges, Terminal Handling charges and weighment charges, etc. are in relation to the services provided within the port and merits consideration for refund in terms of the decision of Tribunal in the case of Shivam Exports & Others in Appeal Nos. ST/784, 786, 788/2009-ST(DB), dt. 26-11-2015, SRF Ltd. v. CCE, Jai­pur 2015 (40) S.T.R. 980 (Tri.-Del.), Suncity Art Exports & Ors. 2016 (45) S.T.R. 411 (Tri.-Del.). and Shree Ram Gam & Chemicals v. Commissioner of Central Excise, Jaipur-II. With regard to the time bar aspect in filing the refund applica­tion, the learned Advocate fairly concedes that the appellant is not pressing for such ground.

3. On the other hand, Shri H.C. Saini, the learned AR appearing for the Rev­enue reiterates the findings recorded in the impugned order.

4. I have heard the learned Counsel for both sides and examined the appeal records.

5. I find that no separate freight has been mentioned on the bills raised by the transporter for transportation of goods from Pithampur to Port of Export. Rather, the invoice issued by the service provider mentioned the claim of to and fro freight charges. Since the freight charges are in connection with transporta­tion of export goods, in absence of any specific prohibition contained in Notification No. 41/2007, the benefit of refund should be available to the appellant. In this context, the Tribunal in the case of M/s. Garware Polyester Ltd. (supra) has allowed the refund claim, holding that service tax paid on transport of empty containers from the yard to the factory is admissible as refund. As regards the charges namely, THC, bill of lading etc., I find that the issue with regard to classification of those services are no more res Integra, in view of the decision cited by the learned Advocate. With regard to the time bar aspect, since the appellant is not contest­ing the refund on the ground of limitation, I am of the view that rejection of re­fund claim by the authorities below on the ground of limitation is sustainable.

6. In view of the above, the appeal is disposed of in following terms :–

(i) Service tax paid on to and fro freight charges is admissible for re­ fund to the appellant claimed as refund to the appellant.

(ii) Service tax paid on THC, BL charges, Inland Haulage Charges, doc­umentation charges, SB, Pallitization charges, Handling charges and weighment charges etc. should be eligible for refund under the cat­egory of port service.

(iii) Rejection of refund claim on the ground of limitation is sustainable.

7. The appeal is disposed of in above terms.

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