Custom, Excise & Service Tax Tribunal
M/S.Tulip Mines Pvt.Ltd vs Cce, C & St, Bbsr-Ii on 28 August, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.ST-53/11
(Arising out of Order-in-Appeal No.53-54/ST/B-II/2010 dated 23.11.2010 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s.Tulip Mines Pvt.Ltd.
Applicant (s)/Appellant (s)
Vs.
CCE, C & ST, BBSR-II
Respondent (s)
Appearance:
Shri S.B.Sharma, Adv. for the Appellant (s) Shri A.Roy, Supdt.(AR) for the Revenue (s) CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Date of Hearing/Decision :-28.8.2015 Date of Pronouncement :- 28.8.2015 ORDER NO.FO/A/75458/2015 Per Dr. D.M. Misra.
These appeals are filed against the Order-in-Appeal No.53-54/ST/B-II/2010 dated 23.11.2010 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.
2. The facts in brief are that the appellant is an exporter of iron ore fines and had filed refund claim of Service Tax of Rs.6,19,395/- 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.1,89,961/- from the said claim on various services but rejected the claim of Rs.4,18,421/- on GTA services. On Appeal the Ld. Commissioner(Appeals) has modified the Order and allowed refund on port services and rejected the refund claims relating to GTA services observing that 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. Hence, the present Appeal.
3. The ld.Advocate, appearing for the appellant has submitted that there is no dispute of the fact of export of goods from Paradeep Port and also it is not in dispute that GTA services 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 a substantive condition for availing the benefit under Notification N0.41/2007-ST dated 6.10.2007 as amended. In support he has referred to the decisions of the Hon'ble Supreme Court in the case of Commr. of Central Excise, New Delhi Vs. Hari Chand Shri Gopal - 2010 (260) ELT 3 (SC) and Mangalore Chemicals & Fertilizers Ltd. Vs. Deputy Commissioner - 1991 (55) ELT 437 (SC), Union of India Vs. Wood Papers Ltd. - 1990 (47) ELT 500 (SC).
4. He has also submitted that all the particulars regarding export of goods including the invoices are available with them and they can 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 case of M.R.Organization Vs. Commissioner of Central Excise, Ahmedabad - 2010 (18) STR 209 (Trl.-Ahmd.)wherein 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 on similar circumstances.
5. Per contra, the ld.A.R. appearing for the Department has submitted that the condition laid down in the Notification is mandatory in nature and the claimant ought to satisfy all the conditions laid down under the said Notification. In support of his submissions, he has referred to the judgments of the Hon'ble Supreme Court in the case of Commr. of Central Excise, Chandigarh I Vs. Mahaan Dairies - 2004 (166) ELT 23 (SC) &MotiramTolaram Vs. 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. Keeping in view the broad principle that service tax should not be exported along with services, service tax refund has been allowed to the exporter on the amount of service tax paid on services used in or in relation to the export of goods. In the present case, there is no dispute on fact of export of the 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 centres around the fact that the relevant invoice numbers were not mentioned in the lorry receipts and 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 theshipping 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 (cited supra) after interpreting the said Notification has observed as;
3. I have considered the submissions made by both thesides. 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 arid 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."
7. 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 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. The matters are, therefore, remanded to the original adjudicating authority for denovo adjudication on the above terms. Needless to mention, a reasonable opportunity of hearing be granted to the Appellant. Appeals are thus allowed by way of remand.
(Pronounced and dictated in the open court.)
(D.M.MISRA) MEMBER(JUDICIAL)
sm
5
Appeal No.ST-53/11