CESTAT, AHMEDABAD BENCH
Durhan Spintex & Holding (P.) Ltd.
Commissioner of Service Tax, Ahmedabad
ORDER NOS. A/1132-1136/WZB/AHD OF 2012
APPEAL NOS. ST/167 TO 169, 171 & 172 OF 2010Online GST Certification Course by TaxGuru & MSME- Click here to Join
JULY 6, 2012
Mr. B.S.V. Murthy; Technical Member – Even though appeals have been filed against different orders, all the appeals were heard together since the issue relates to eligibility of the appellants for refund of service tax paid on various services under notification No. 41/07. While some of the services are common to all the orders, some of them are not. Since the notification under which refund is claimed and most of the services are common to all the appeals, a common order is being passed.
2. Heard both the sides.
3. The refund of service tax claimed on port services has been rejected on the ground that the appellant have not got invoice from the service provider but from the CHA and also for the reason that the service provider was neither the port nor authorised by the port. It was submitted by the appellants that the CHA has acted as a pure agent and has collected the amount from them and paid to the service provider and appellants have provided all the documents and proof of payment of service tax and therefore they are eligible. The very same issue had come up before the Tribunal earlier and this Tribunal has taken the view that in respect of port service, THC charges, REPO/BL charges etc. Whether service provider was authorised or not, if the service tax has been paid towards port service, while granting refund, the refund sanctioning authority cannot sit in judgment to say that the service received was not port service. Once the services are covered under the statutory definition of port service and service tax has been paid, refund is admissible. In view of the above conclusions reached by the Tribunal in the case of CCE v. Ramdev Food Products (P.) Ltd. [Final Order Nos A/861-863/2010-WZB/AHD, dated 30-6-20010] and in the case of Indoworth India Ltd. v. CCE [Order Nos M/74 to 78/11/SMB/C-IV, dated 1-4-2011] the appellant is eligible for the refund to service tax paid on port services. The Commissioner (Appeals) has taken a view that it was also found by the Revenue that in respect of service providers namely M/s. Freight Line India Pvt. Ltd., M/s. Mearsk India Pvt. Ltd., M/s. Ace India Pvt. Ltd. and M/s. Anchor Lines and Shipping Lines/Shipping Line Agents under service provided by them are business auxiliary service which is not specified for refund. However, what is required to be seen whether service tax was paid for the service rendered under the admissible services category or not. If the service tax has been paid under business auxiliary service, appellant may not be eligible. Before sanctioning refund in respect of services provided, the category of service and for which service tax has been paid may be verified from the invoice or any other document that may be produced by the appellants before a decision is taken.
4. As regards GTA service, the refund claim has been rejected on the ground that for transport of goods from ICD to port of export, details like shipping bill number, export invoice number, description of export goods etc. are not available. It was submitted on behalf of the appellants that they have enough evidence to link the goods with the invoices for claim of service tax on GTA service. In this regard the appellants relied upon the decision of the Tribunal in the case of CCE v. Dishman Pharma & Chemicals Ltd. [Final Order Nos. A/1804-1805/2010-WZB/AHD, dated 22-10-2010]. I find that in this decision the Tribunal took a view that refund claim cannot be rejected on technical grounds like invoices issued by transport agencies do not contain all the details. If the appellant is able to correlate the export goods with the documents supporting service tax payment, such a refund should be granted. Therefore the issue relating to service tax on GTA service will have to be considered in the light of the decision cited above and considered afresh. If appellants cite any other decision of the judicial forum, such decision also should be considered.
5. As regards technical testing and analysis service, claim has been rejected on the ground that the invoice is in the name of M/s. Ashima Ltd. who has made the payment. In this case also if the appellants are able to show the evidence of payment of service tax by them and the relationship of the service with the goods exported and also evidence to show that M/s. Ashima Ltd. have not taken the credit of service tax in their books of account, refund may have to be sanctioned to the appellants. In this case it has been held that the appellants were not able to show any document that service tax was paid by them. To show that refund is available in respect of this service, the appellant relied upon the decision in the case of F. Ahmed & Co. v. CC 1993 (67) ELT 759 (GOI) to submit that merchant exporter is entitled to rebate and for this purpose a no objection certificate from the manufacturer would be adequate. It is their contention that the decision is applicable to the present case. I am not convinced that this decision is squarely applicable. Appellants have to show non availment of cenvat credit by the manufacturer and the fact of payment of service tax by them and fulfilment of other conditions to be eligible for refund of service tax paid on technical testing and analysis service.
6. The GTA service received for transportation of empty container to the premises of exporter is also admissible in view of the fact that the notification provides for refund of service tax paid in respect of services used in relation to export and in this case it cannot be denied that the transport of empty container to the exporter’s premises was necessary and was received in relation to exported goods.
7. One of the claims has been rejected in order in appeal No. 343/9 dated 30.12.09 on the ground that the same is time barred. On this issue there are subsequent decisions of the Tribunal directly applicable to notification No. 41/07 and subsequent amendment notifications. If the appellants cite these cases, the applicability of these decisions may be considered and the refund claim rejected on the ground of time bar also may be considered in the light of decisions, if any that may be cited by the appellants.
8. In the result the impugned orders are set aside and the matter is remanded to the original adjudicating authority for fresh consideration of all the refund claims in the light of observations made in this order.