CESTAT, KOLKATA BENCH
Khatau Narbheram & Co.
Commissioner of Central Excise Customs & Service tax
ORDER NO. A-118/KOL/2012
APPEAL NO. ST/214 OF 2010
MARCH 2, 2012
1. The present appeal is filed by the appellant against the Order-in-Appeal No.11/ST/B-II/2010 dated 10.3.2010 passed by Commissioner of Central Excise (Appeals), Customs & Service Tax, BBSR.
2. The facts of the case in brief are that the appellant is an exporter of iron ore fines and had filed refund claim of Service Tax of Rs. 6,38,019/- on account of services used for exported goods as per Notification No. 41/2007-ST dated 6.10.2007 as amended. The adjudicating authority had allowed Rs. 1,84,687/- from the said claim on port services but rejected the claim of Rs. 4,53,332/- on GTA services on two grounds. Firstly, the mines cannot be regarded as a place of removal and secondly, the export invoices numbers are not mentioned in the lorry receipt and the shipping bills as required under Notification 14/07-ST dated 6.10.07 as amended by Notification 3/2008-ST dated 19.2.2008.
3. The Id.Commissioner (Appeals) in his order disagreed with the reasoning that the export effected directly from the mines to the port cannot be considered to come within the definition of place of removal. However, he has upheld the Order of the adjudicating authority accepting that the condition prescribed at Sl. No. (iii) inserted in Notification No. 41/2007-ST by the amendment, has not been satisfied as the details of the exporter’s invoices relating to export of goods were not specifically mentioned in the lorry receipt and in the correspondence of shipping bills. Hence the present appeal.
4. The Id.C.A, appearing for the appellant has submitted that there is no dispute of the fact of export of gods from Paradeep Port and also it is not dispute that GTA service were received by them on which service tax had been paid. He has submitted that all the details of export including the export invoice nos. were mentioned in the shipping bills, however, export invoices could not be mentioned in the relevant lorry receipt. But they are in possession of all the details at the time of the export of the goods. He has contended that this is not substantive condition for availing the benefit under Notification No.41/2007-ST dated 6.10.2007 as amended. In support of his contention, he has referred to the ratio of the decisions of the Hon’ble Supreme Court in the case of CCE v. Hari Chand Shri Gopal 2010 (260) ELT 3 and Mangalore Chemicals & Fertilizers Ltd. v. Dy. Commissioner 1991 (55) ELT 437 (SC) Union of India v. Wood Papers Ltd. 1990 (47) ELT 500 (SC). He has also submitted that all the particulars regarding export of goods including the invoices are available with them and they can satisfy and co-relate the lorry receipt with the export invoices so as to satisfy the Department that the refund of service tax claimed pertains to GTA services used for the export of goods. He has referred to the judgement of the Tribunal in the West Zonal Bench, Ahmedabad in the case of M.R. Organization v. CCE [Final order No. A/2310/09 WZB/Ahd, dated 30-10-2009] wherein on a similar issue interpreting the Notification No. 41/2007-ST dated 6.10.2007 as amended, the Tribunal has allowed the benefit of refund to the exporter in that case.
5. Per contra, the Id.A.R. appearing for the Department has submitted that the condition laid down under Notification is mandatory in nature and before the eligibility to avail the benefit under the said Notification, the claimant ought to satisfy that all the conditions laid down under the said Notification have been complied with. In support of his submissions, he has referred to the judgments of the Hon’ble Supreme Court in the case of CCE v. Mahaan Dairies 2004 (166) ELT 23 & Motiram Tolaram v. Union of India 1999 (112) ELT 749 (SC).
6. Heard both sides and perused the case records. The present refund claim relates to GTA service used by the appellant in relation to export of goods. It refers to the objective that service tax should not be exported. Keeping in view the same, the service tax refund has been allowed to the exporter on the amount of service tax relating to services used in the export of goods. In the present case, there is no dispute on the export of the said goods by the appellant nor there is any dispute that GTA services had been used in the export of the said goods. The only dispute is that the necessary invoice nos. were not mentioned in the lorry receipt as also in the corresponding shipping bills. During the course of hearing, the Id. Advocate has submitted that the details of export invoices are reflected in the shipping bills. But, he has fairly admitted that export invoice details could not be mentioned in respective lorry receipts. However, they are in a position to establish the link between the lorry receipt and the respective export invoices under which the goods were exported. There is no need to examine whether the said condition is substantive or otherwise as I find that on similar issue, this Tribunal in the case of M.R. Organization (supra) after interpreting the said Notification has observed as:
“3. I have considered the submissions made by both the sides. In this case there is no dispute that the goods have been exported. There is also no dispute that courier service has been availed. The only objection Revenue has taken is that the invoices did not contain the necessary details and same have been given subsequently. No doubt the requirements, the receipt issued by the courier agency should contain are specified. However, there is no bar to provide these details separately in case the original receipt did not contain these details. In such a case Revenue would be free to insist on verification and refund can be granted only after verification. As regards the evidence to link the use of courier service, it is not essential that the invoice should contain the linkage. The exporter can produce such evidence later. Therefore, the rejection of refund claim on these grounds is not correct. Accordingly, the matter is remanded to the Original Adjudicating Authority who will be free to verify the correctness of the details submitted by the appellants and also verify whether there is a proper linkage or not and consider the refund claim afresh. Accordingly, the matter is remanded back to the Original Adjudicating Authority to decide the refund claim in terms of the above order.”
I find that the circumstances in the present case are more or less similar to the facts of the aforesaid case except the services involved. In these circumstances, I am of the opinion that the present case also be remitted to the original authority for verification of the of the claim of the Appellant on the use of GTA service in the export of goods by establishing a link between the lorry receipt and the export invoices and also the export invoices and shipping bills. Consequently, a decision on the eligibility of refund claim on the said GTA services be considered. The matter is, therefore, remanded to the original adjudicating authority for denovo adjudication on the above terms. Appeal is thus allowed by way of remand.