Case Law Details

Case Name : Adani Enterprises Limited Vs Commissioner of Central Excise & ST (CESTAT Ahmedabad) ST No. 22 of 2010
Appeal Number : 04/06/2020
Date of Judgement/Order :
Related Assessment Year :
Courts : All CESTAT (1011) CESTAT Ahmedabad (138)

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:-

TABLE

S. No. Issue Raised Clarification
VII The service provider providing services to the exporter provides various services. But he has registration of only one service. The refund is being denied on the grounds that the taxable services that are not covered under the registration are not eligible for such refunds. Notification No. 41/2007-S.T. provides exemption by way of refund from specified taxable services used for export of goods. Granting refund to exporters, on taxable services that he receives and uses for export do not require verification of registration certificate of the supplier of service. Therefore, refund should be granted in such cases, if otherwise in order. The procedural violations by the service provider need to be dealt separately, independent of the process of refund.

From the above specific clarification, 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.

10. Regarding the issue of time-bar in filing the refund claim inasmuch as the appellant filed refund claim after stipulated time limit of 60 days as per Notification No. 41/2007-ST, we find that learned Commissioner (Appeals) upheld the rejection of claim on the premise that refund was required to be filed on quarterly basis, within a period of 60 days from the end of relevant quarter during which the goods were exported. In the present case, refund for the quarter January 2008 to March 2008 which included the present claim pertaining to October 2007 to December 2007 was filed on 29.05.2008. Therefore, it was held that refund was filed beyond 60 days, hence inadmissible.

We find that there is no dispute that even though refund is for the quarter October 2007 to December 2007 but the same was filed within six months i.e. on 29.05.2008 from the end of the quarter. The adjudicating authority adjudicated the show cause notice in 31.03.2009 and by which time the period of 60 days was extended to six months. Therefore, the extended period upto six months should have been considered. Accordingly, refund was well within time period of six months and hence does not hit by limitation. Identical issue involving the same period has been considered by this Tribunal in the case of KN Resources Pvt. Limited (supra) wherein passed the following judgment, which was maintained by the Hon’ble Chhattisgarh High Court reprted at 2017 (6) GSTL J147 (Chhattisgarh):-

“The present appeal is directed against the order dated 25-3-2010 passed by the Commissioner (Appeals), Raipur. The appellant field refund claim under Notification No. 41/2007-S.T., dated 6-10-2007 for the service tax paid on services utilized in relation to export of the goods during the period October, 2007 to March, 2008. The refund claim for an amount of Rs. 51,78,225/- was filed on 27-10-2008. The original authority vide his order dated 9-12-2009 rejected the refund claim for the reason that the claim was time- barred. As per the Provision 2(e) of Notification No. 41/2007-S.T., the refund claim is to be filed on a quarterly basis within 60 days from the end of the quarter. He took the view that the claim filed on 27-10-2008 has been filed after the time limit of 60 days. When this order was challenged before the first appellate authority, the same stood rejected, and hence, the present appeal.

2. We have heard Shri A.K. Prasad, ld. Counsel for the appellant as well as Dr. Sheoran, ld. DR.

3. The ld. Counsel for the appellant submitted that the Notification No. 41/2007 was replaced by the Notification No. 17/2009-S.T., dated 7-7-2009. In the succeeding Notification, the time limit for filing refund claims was specified as “within one year from the date of export of the said goods”. This was further changed from the position prevailing under the Notification 41/2007, in which claims were required to be filed within 60 days from the end of the quarter.

4. At the time of issue of Notification No. 17/2009-S.T. the following clarification was given by the Board :-

“Further, the new Notification does not bar its applicability to exports that have taken place prior to its issuance.”

5. The submission of the ld. Counsel for the appellant is that the benefit of the Board clarification should be extended to them.

6. We have gone through the said Notification as well as clarification issued by   the Board. We are of the view that the clarification issued by the Board is in the nature of a benefit extended to the assessees. It is to be viewed as relaxation of the conditions prescribed under Notification No. 17/2009-S.T., even though a one time measure. We find that in the present case the exports have taken place prior to the issue of the Notification No. 17/2009. It is also seen that the refund claim was filed citing the earlier Notification No. 41/2007-S.T. Given the benefit of relaxation in the Board Circular, it emerges that refund claim filed within a period of one year from the date of export should be allowed the benefit of refund of service tax paid in export. The appellant has cited the CESTAT decision in the case of Knitex Textiles Pvt. Ltd. CCE, Mumbai reported in 2015 (40) S.T.R. 562 in which an identical issue has been considered and the benefit extended. However, since the refund has been claimed for the exports done between October, 2007 and June, 2008, and the refund has been claimed on 27-10- 2008, time-bar will arise for exports which have taken place during the period 1-10-2007 to 26-10-2007. This aspect will need to be re-considered by the original authority at the time of considering the refund claim.

7. In line with the above discussion, we set aside the impugned  order  and  remand the matter back to the Original Authority to re-consider the refund claim in the light of the discussions narrated above.

8. Appeal is disposed of in the above ”

In the above judgment of Tribunal, referred to the clarification issued by CBEC whereby the limitation of one year provided in the amending notification was applied. Similar issue came before the Mumbai Bench of Tribunal in the case of Raymonds Limited (supra) wherein the Tribunal has passed the following order:-

“5. I have carefully considered the submissions made by both the sides. In the present case the refund claim pertains to the quarter October-December, 2008. The appellant have filed the refund claims on 30-7-2009 for the refund under Notification 41/2007-S.T. The said Notification was amended vide Notification No. 17/2009, dated 7-7-2009 so as to allow filing of the refund claim within a period of one year from the date of export of the goods. Inasmuch as the appellant filed the refund claims in July, 2009 for the quarter ending October-December, 2008, the refund claims are within a period of one year from the date of export of the goods. Therefore, the appellant would be eligible for the benefit of refund under the aforesaid Notification subject to satisfaction of other conditions stipulated in the Notification.

5.1 The Hon’ble High Court of Bombay, which is the jurisdictional High Court, in the  case of Uttam Steel Ltd. (supra) has held that when procedure and practice are amended they have to be amended retrospectively and the benefit allowed if the procedures are satisfied. This Tribunal in the case of Sandoz Polymers Pvt. Ltd. (supra) has also held the same view. Further, the C.B.E. & C. in Circular dated 12-3-2009 cited supra, have also held that the so long as the refund claims is filed within the extended period of time provided for in the Notification, the assessee would be eligible for the benefit of refund, subject to satisfaction of other conditions stipulated in the Notification.”

In view of above the refund could not have been rejected on limitation.

11. Regarding the issue of rejection of refund of service tax of GTA service used for transportation of goods from ICD to Port, on the ground that appellant failed to correlate with the amount of refund claim with the export documents. We find that services covered under Serial No. 6 of Notification No. 41/2007-ST which does not stipulate any condition. Moreover, transportation of goods from ICD to Port was undoubtedly for export of goods only. Therefore, importing any condition which is not exist in the notification is beyond the jurisdiction of learned Commissioner (Appeals) and on that ground, refund should not have been rejected.

12. As regards the refund claim in respect of service of storage and warehousing service, the same was rejected on the premise that there is no correlation of export with the documents of service provider of storage and warehousing. It is the submission of the appellant that storage/ warehousing was taken by the appellant on monthly rent basis. It is obvious that when monthly rent was paid the same cannot be correlated with individual export goods stored/warehoused in such place. There is  no dispute that the entire storage areas were exclusively used for export of goods. It is not the case of the revenue that such storages and warehouses are also used for other than export goods. Therefore, there is no doubt that the said service was used for export of goods only. An identical issue has been considered by this Tribunal in the case of Vijay Cotton & Fiber Company (supra) wherein the following order was passed:-

“6. There is no contrary evidence produced by the department that the warehouse has been used by the appellant for storage of the goods other than the export goods. In fact the appellant is a merchant exporter and all the goods stored in the warehouse have been exported. In these circumstances, I hold that the appellants are entitled for refund of service tax paid on Storage & Warehousing service.”

The above judgment was challenged by the Revenue before the Hon’ble Bombay High Court wherein the substantial questions of law were framed:-

“(a) Whether, in the facts and circumstances of the case and in law, the CESTAT was correct in allowing the refund claim of the assessee without considering the conditions set out in Notification No. 41 of 2007 dated 6th October, 2007 as amended from time- to-time?

(b) Whether, in the facts and circumstances of the case and in law, the CESTAT was correct in shifting the burden of proof on the Revenue without categorically holding that the assessee has discharged the initial burden of proof by producing tangible evidence?”

The Hon’ble High Court made the following observation:-

“5. Upon a perusal of entire paper book with the assistance of Ms. Cardozo, we are unable to agree with her. We are clear in our mind that the assessee reiterated before the Tribunal that the claim pertains to the warehousing charges paid for storage of export goods. When the assessee brought before the authorities the absolute proof that the very goods were all exported, then, the storage charges for the services, which have been rendered, could have been made subject matter of the claim for refund. The refund of service tax paid on storage warehousing services was the claim and dealt with by the Tribunal. There was insurance cover taken. Therefore, it is not a claim based on no material or a claim which does not fulfill the conditions under the notification. It does not mean that the Tribunal’s order every time mandates the Department to produce the proof in negative and blindly relies on the version of the assessee. It is in the above circumstances that the Tribunal faulted the Revenue for not being able to produce contrary evidence. Secondly, we do not think that the Revenue in this case can raise a plea that the merchant exporter was not entitled to seek refund. That is not the ground on which the claim is objected and before the Tribunal by the Revenue. The Revenue cannot introduce something for the first time and terms it as a substantial question of law. We clarify that we do not express any view on that part of the contention of Ms. Cardozo, but finding that the Tribunal’s order deals with the factual controversy within the parameters of law, then, the appeal need not be entertained. It does not raise any substantial question of law. It is dismissed.

In view of above decision, coupled with the fact that storage  and warehousing premises were exclusively used for export of goods, refund claim cannot be rejected on the issue of correlation particularly in the facts of the present case.

13. Learned Commissioner (Appeals) upheld the rejection of the refund claim also on the premise that Lorry Receipts issued by the transporters did not mention name of the appellant. In this regard, we find that appellant are merchant exporter, the goods manufactured and cleared by Mafatlal Industries Limited. Since the goods were transported directly from their factory to the Port, though all the related documents were in the name of the appellant, the Lorry receipt does not bear the name of appellant is obviously due to inadvertent mistake on the part of the transporters. The transportation of goods gets clearly correlated with other documents which bear the name of the appellant. The appellant also obtained certificates  from the transporters namely Ess Enn International, Sanjay Container Services and Sanjay Transport Company whereby it was certified that the invoice numbers and Lorry Receipts referred to transportation of Polyester Cotton Grey from Mafatlal Industries Limited to Port is under instruction of the appellant and due to their inadvertent mistake, the name of appellant along with Mafatlal Industries Limited was not mentioned in the Lorry Receipts. It was also certified by the transporters that against the said Lorry Receipts, the invoices were raised on the appellant and the same was paid by them. With these ample evidences, merely that the name of the  appellant is not appearing on the Lorry Receipts, cannot be the reason to reject the refund. Therefore, on this ground also refund claim was wrongly rejected.

14. As per our above observations, we are of the view that learned Commissioner (Appeals) has wrongly upheld the rejection of claim on the above counts. Therefore, the impugned order is modified to the above extent. The appeal is allowed with consequential relief.

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