Case Law Details
CESTAT, AHMEDABAD BENCH
Commissioner of Central Excise, Ahmedabad
versus
Gokul Refoils & Solvents Ltd.
TECHNICAL MEMBER B.S.V. Murthy
FINAL ORDER NO. A/679/2012-WZB/AHD.
Appeal No. ST/541 OF 2010
MAY 10, 2012
ORDER
1. The appellant filed a refund claim of Service Tax paid on service of C&F agent, fumigation service, transportation of the goods, terminal charges, etc.
2. After considering the refund claim, the original adjudicating authority took a view that the appellant is eligible for refund of Service Tax of Rs. 3,21,049/- and after it is sanctioned, during audit, it was noticed that there were certain discrepancies and consequently, the Commissioner, in exercise of his powers under Section 84 of Finance Act, 1994, proposed revision of the order passed by Assistant Commissioner and issued a Show Cause Notice calling upon the assessee to explain why the order should not be modified and refund claim should not be held as wrongly passed.
3. After considering the submissions made by the respondent, the Commissioner decided that there was no need for revising the order passed by original adjudicating authority and Revenue is in appeal against this decision.
4. Heard both sides. The observations of the Commissioner for upholding the order passed by original adjudicating authority are found in Para 3 of the order and are reproduced below :
“3. After carefully going through the submissions made and perusing the copies of the documents submitted by the notices, I observe that :-
(i) The refund of Service Tax has been claimed in respect of the services received in relation to the export of goods. The invoices issued by M/s. Narendra Logistics Pvt. Ltd. mention the shipping bill number and other details whereby these can be co-related to the goods under export. Therefore, there is substantial compliance with the provisions of Notification No. 41/2007-S.T., dated 6-10-2007 as amended.
(ii) It is apparent from the invoices issued by C & F agent that the taxable services provided by them were in relation to the export of goods in question.
(iii) Regarding Service Tax on fumigation charges, specialized cleaning process for containers i.e. fumigation is mandatory when any agricultural product is to be exported. Such fumigation can be carried out only by the Government approved agencies. Therefore, unless there is explicit evidence to show that the service provided was not by an agency accredited by the competent authority, it has to be assumed that it was done by an approved agency only.
(iv) Regarding the refund having been granted only on the basis of photocopies, I do not find any merit in this objection as C.B.E. & C vide Circular No. 112/06/2009-S.T., dated 12-3-2009 has clarified that normally certified copies of the documents should be accepted and it is only in the case of in-depth enquiry that the original documents needs to be verified.”
5. The sample invoices were produced by the ld. Counsel for the respondents and on going through the same, I find that the invoices give the details of shipping bill number, date of shipping bill, name of the party, the name of the port to which the goods are to be exported, name of the vessel etc. Therefore, I do not find anything wrong with the conclusion reached by the Commissioner that the invoices can be linked with the export goods and therefore the refund cannot be rejected on this ground.
6. The second ground is that the photo copies of the invoices were produced and the original copies were not produced. For this purpose, the Commissioner relied upon the circular issued by the Board, dated 12-3-2009, wherein a view has been taken that certified copies of the invoices are sufficient. Since the requirement is satisfied and Board’s Circular supports this view, the appeal filed by the Revenue has no merit.
7. As regards fumigation charges, a specialized process for cleaning the containers, the Commissioner has allowed the claim on the ground that the fumigation is mandatory when agricultural products are exported and such fumigation can be done only by the Government approved agencies. Very same issue had come up before this Tribunal in the case of Ramdev Food Products (P.) Ltd. v. CCE [2012] 21 taxmann.com 410 (Ahd – CESTAT), wherein the Tribunal has taken a view that notification prescribed a condition that there has to be a written agreement between the buyer and the seller about testing and analysis of the product, if the service has been received without written agreement, the benefit of refund would not be admissible. In this case, fumigation is a specialized cleaning process, requiring to satisfy the condition of notification of written agreement between buyer and seller and ld. Counsel for the respondent fairly agree that they do not have a written agreement.
8. Under these circumstances, the respondent is not eligible for refund of Service Tax paid, on fumigation. Therefore, the Revenue’s appeal as regards fumigation is allowed and in respect of all other services, the appeal is rejected.
