Adani Enterprises Limited Vs Commissioner of Central Excise & ST (CESTAT Ahmedabad)
The issue under consideration is whether it is correct to reject the refund on the basis that the registration number of appellant not mention in invoice?
The CESTAT states that on the basis of Circular No. 112/6/2009-ST dated 12.03.2009, it is clear that refund claim cannot be rejected merely because the service provider has not mentioned registration number in their invoices. Moreover, there is no dispute raised by the Revenue on the facts that goods have been exported, service was used for export of goods and the value of service including service tax was paid to the service provider. In these undisputed facts, merely because registration was not mentioned in the invoices it does not mean that appellant has not used the said services for export of goods. The judgment relied upon by the appellant in the case of Crystalline Exports Limited (supra) supports their case. Therefore, rejection of refund on this count is not sustainable.
FULL TEXT OF THE CESTAT JUDGEMENT
The brief facts of the case are that the appellant is a merchant exporters inter-alia engaged in the business of export of goods. The appellant originally filed refund claim of Rs. 49,81,606/- on 29.05.2008 in terms of Notification No. 41/2007-ST dated 06.10.2007 as amended from time to time of service tax for the services used in export of goods. The said refund claim was filed on account of services received for export of goods for the quarter Jan 2008 to March 2008. The appellant filed letter dated 06.02.2009, withdrew the refund claim amounting of Rs. 29,22,536/- and claimed refund of the balance amount. The Assistant Commissioner of service tax vide order-in-original No. SD-02/Ref-20/09-09 dated 20.08.2009/31.03.2009 sanctioned refund claim of Rs. 1,17,003/- and rejected for the balance amount. The learned Commissioner (Appeals) in order-in-appeal No. OIA-270/2009/STC/HKJ/COMMR-A-/AHD dated 08.10.2009 remanded the matter to the adjudicating authority for deciding the case on merit, in terms of Para 6 of the impugned order confirmed the order-in-original dated 31.03.2009. Ld. Commissioner (Appeals) rejected the appeal on following points;
(i) Registration number of the service providers was not mentioned in the invoices issued by the service provider.
(ii) Refund claim pertaining to the period October 2007 to December 2007 for which refund claim was filed after a period of 60 days, therefore hit by limitation.
(iii) Refund claim filed for service tax paid on GTA Service for transportation of goods from ICD to Port was not supported with proper documents, co-related with export of goods.
(iv) Refund claim filed for storage and warehouse service rejected on the premise that there was no co-relation of export with documents of service provided of storage and warehouse.
(v) Refund claim was filed for GTA for transportation of goods from place of removal upto Port, lorry receipt did not mention name of the appellant therefore, it was held that refund claim was not filed with proper documents.
Being aggrieved by the impugned order, the appellant filed the present appeal.
2. Shri Hardik Modh, learned Counsel appearing on behalf of the appellant submits that as regards the issue of non-mention of registration number in the invoices issued by the service provider, the Ld. Commissioner (Appeals) upheld the order passed by the adjudicating authority on the premise that registration number of the service provider was not mentioned in the invoice and therefore, in view of Board Circular No. 106/9/2008-ST dated 11.12.2008, the said invoice are not proper documents as per rule 4A of Service Tax Rules, 1994 therefore, refund claim was not permissible. It is his submission that Commissioner (Appeals) wrongly placed reliance on the circular dated 11.12.2008 whereas the same circular was amended vide Circular No. 112/6/2009-ST dated 12.03.2009 wherein the issue related to mention of registration number was clarified and due to this discrepancy, refund cannot be denied. He further submits that the fact regarding export of goods and use of service for such exports, payment of value of services including service tax to the service providers are not in dispute. Therefore, denial of refund on this count is not tenable. He placed reliance on the judgment in the case Crystalline Exports Limited vs. CST – 2015 (37) STR 778 (Tri. Mumbai).
3. In the context of refund claim filed for October 2007 to December 2007 in the quarter of Jan 2008 to March 2008, it was filed after stipulated time limit provided Notification No. 41/2007-ST dated 06.10.2007, the Commissioner (Appeals) upheld the order-in-original on the premise that refund claim was required to be filed on quarterly basis, within a period of 60 days, at the end of relevant quarter during which the goods were exported. In the instant case, the appellant filed refund claim on 29.05.2008 for the quarter January 2008 to March 2008, however, the appellant sought refund in present claim for the quarter October 2007 to December 2007 for which the appellant earlier filed separate refund claim. Therefore, the refund claim cannot be filed after stipulated period. He submits that condition 2(e) of Notification No. 41/2007-ST dated 06.10.2007 prescribes time-limit of 60 days was extended by Notification No. 32/2008-ST dated 18.11.2008. In the present case, the refund was originally filed on 29.05.2008 covering the period October 2007 to December 2007; that Adjudicating Authority adjudicated the show cause notice on 31.03.2009, the time limit of 60 days was extended by six months in terms of Notification No. 32/2008-ST dated 18.11.2008. He submits that learned Commissioner (Appeals) ought to have considered that if the refund claim was filed within extended period of six months, at the end of the quarter during which the goods were exported, refund claim ought to have been allowed. In the present case, refund claim was filed on 29.05.2008 for the quarter ending July 2007 to December 2007 which is in the period of six months from the end of quarter. Therefore, it does not hit by limitation as held in the following cases:- (a) KN Resources Pvt. Limited vs. CCE – 2017 (47) STR 303 (Tri. Del.) – upheld by Chhattisgarh High Court reported in 2017 (6) GSTL J147 (b) Raymonds Limited vs. CCE – 2015 (38) STR 441 (Tri. Mumbai) (c) Gran Overseas Limited vs. CCE – 2017 (52) STR286 (Tri. Del) (d) Ruchi Soya Industries Limited vs. CCE – 2017(51) STR 453 (Tri. Del.)
4. He further submits that the notification does not debar the exporter to file more than one refund claims on quarterly basis. He takes support from the above judgments where the assessee filed more than one refund claims. Therefore, on this count also, refund claim was wrongly denied.
5. As regards refund of service tax of GTA service used for transportation of goods from ICD to Port, he submits that the learned Commissioner (Appeals) upheld the order of the Assistant Commissioner for rejecting refund claim of service tax paid on GTA services for transportation of goods from ICD to Port on the premise that appellant failed to correlate the amount of refund claim with export documents. He submits that refund claim for GTA service for transportation of goods from ICD to Port under Serial No. 6 of Notification No. 41/2007 which does not stipulate any condition. He submits that notification has specifically provided conditions of claiming refund of GTA services for transportation of goods from place of removal to ICD or Port at Serial No. 12 of the table appended in the notification. No such condition has been provided in Serial No. 6 of the table therefore, impugned order rejecting refund claim referring to the condition is contrary to the notification. In support, he placed reliance on the Hon’ble Supreme Court decision in the case of Commissioner of Customs vs. Dilip Kumar & Company – 2018 (361) ELT 577 (SC) wherein it was held that words in a statute is a clear and unambiguous, the Court is bound give effect to the said meaning irrespective of the consequences.
6. As regards denial of refund claim for storage and warehouse service, he submits that refund is rejected on the premise that there was no correlation of export with the documents of service provider of storage and warehousing. He submits that the appellant had taken storage/warehousing place on monthly rental basis on monthly payment of rent. Since monthly rent was paid it was difficult to correlate between the rental paid by the said service vis-a-visa actual storage of the exported goods. He submits that storage areas were exclusively used for export of the goods and therefore, it cannot be doubted that the said services were used for other than export of the goods. In support of his submission he placed reliance on decision in the case Vijay Cotton & Fiber Company vs. CST – 2014 (36) STR 1164 (Tri. Mum.). He further submits that the above judgment was upheld by Hon’ble Bombay High Court reported at CST vs. Vijay Cotton & Fiber Company – 2017 (48) STR 450 (Bom.).
7. As regards refund claim filed for GTA service for transportation of goods from the place of removal upto the Port which was denied on the premise that Lorry Receipts does not mention name of the appellant therefore, refund claim is not supported with proper documents. He submits that in this case the goods were purchased from Mafatlal Industries Limited and the goods were transported directly from the factory to Port. All the documents related to export were in the name of appellant. Due to inadvertent mistake on the part of transporters, the name of appellant was not mentioned in the Lorry Receipts. He submits that it is undisputed fact that appellant availed GTA service and paid freight for such services in terms of rule 2(1)(d) of Service Tax Rules. Merely non-mentioning name of appellant in Lorry Receipts, refund claim ought not to have been denied. To support their case appellant procured certificates from the transporters namely M/s. Ess Enn International, Sanjay Container Services and Sanjay Transport Company whereby, they certified that invoices and LRs referred to transportation of Polyester Cotton Grey from Mafatlal Industries Limited to Port under instructions of appellant and due to their inadvertent mistake, name of the appellant was not mentioned along with Mafatlal Industries Limited. The transporters also certified that invoices were raised on the appellant and paid by them. These certificates suffice that the appellant paid GTA charges and therefore they are entitled to get refund on these GTA services.
8. Shri Vinod Lukose, learned Superintendent (Authorised Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that as regard time limit of 60 days for filing refund at the end of the The extension of time from 60 days to six months which was made subsequently cannot be applied retrospectively. He also relied on the following judgments:-
(a) Principal Commissioner of S.T. vs. RR Global Enterprise Limited – 2016 (45) STR 5 (A.P.)
(b) RR Global Enterprise Pvt. Limited vs. Principal Commissioner of S.T. – 2017 (3) GSTL J65 (S.C.)
(c) Commissioner of Customs (Import) Mumbai vs. Dilip Kumar & Company – 2018 (361) ELT 577 (S.C.).
9. We have heard both sides and carefully considered the submissions made. As regards the issue related to rejection of refund claim on the ground that registration number of service provider was not mentioned in the invoices issued by service provider, we find that learned Commissioner (Appeals) denied the refund solely relying upon the Circular No. 106/9/2008- ST dated 11.12.2008 whereas the same Circular was amended by Circular No. 112/6/2009-ST dated 12.03.2009 whereby it was clarified as under:-
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