Custom, Excise & Service Tax Tribunal
Tinna Oil & Chemicals Ltd vs Commissioner Of Customs & Central ... on 26 May, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal Nos. ST/63 to 66/10 (Arising out of Order-in-Appeal No. AGS (228-231)96,97,98 & 99/09 dated 03.11.2009 passed by Commissioner of Central Excise & Customs(Appeals), Aurangabad.) For approval and signature: Honble Mr.P.G. Chacko, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : Yes 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 :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Tinna Oil & Chemicals Ltd Appellant (Represented by: None) Vs Commissioner of Customs & Central Excise, Aurangabad Respondent (Represented by: Mr. A.K. Prabhakar, JDR) CORAM:
Honble Mr.P.G. Chacko, Member (Judicial) Date of Hearing : 26.5.2011 Date of Decision:26.5.2011 ORDER NO..
Per: P.G. Chacko
1. These appeals of the assessee are directed against a common order passed by the Commissioner (Appeals) in four appeals filed by the assessee against four separate orders of the original authority. There is no representation for the appellant despite notice, nor any request for adjournment. I have examined the records and heard the learned JDR.
2. The appellant had filed four refund claims with the original authority claiming refund of service tax paid on the services utilized by them in relation to export of goods. The refund claims were filed in terms of Notification No. 41/2007-ST dated 6.10.2007 which exempted the taxable services received by an exporter and used for export of goods, from the whole of the service tax leviable thereon under Sections 66 and 66A of the Finance Act, 1994, subject to certain conditions. The Notification expressly provided that the exporter shall claim the exemption by filing a claim for refund of the service tax paid on the specified service. It further provided that such refund claim shall be accompanied by documents evidencing (i) export of the goods, (ii) payment of service tax on the specified services for which claim for refund of service tax is filed; and (iii) wherever applicable, a copy of the written agreement entered into by the exporter with the buyer of the goods. The Notification further stipulated that the Assistant Commissioner/Deputy Commissioner of Central Excise shall be satisfied that the services have been actually used for export of the goods.
3. The refund claims were rejected by the Assistant Commissioner under Section 11B of the Central Excise Act read with Section 83 of the Finance Act, 1994 on the ground that the claims were not supported by necessary documents and on the further ground that no evidence was adduced against the bar of unjust enrichment. Appeals filed by the assessee against the orders of the Assistant Commissioner came to be rejected by the Commissioner (Appeals). The present appeals are directed against the appellate Commissioners common order. The learned JDR submits that the necessary documents were not produced by the assessee and hence there is no reason to interfere with the impugned order. In this connection, he has referred to the relevant conditions of Notification No. 41/2007 ibid. The required documentary evidence has not been adduced even before the Tribunal and, therefore, the appeals are liable to be dismissed.
4. On a perusal of the grounds of these appeals, I note that the appellant has claimed that they had furnished the necessary documentary evidence to substantiate their refund claims in terms of the Notification. However, the appellant has not disclosed the identity of the documents which are claimed to have been submitted to the lower authorities. It appears from the records that they had submitted tabulated statements of the particulars of the input services which are claimed to have been utilized for the purpose of export of goods. Particulars such as name of the input service, taxable value, service tax paid thereon, name of goods exported, number and date of export invoice etc were furnished through such tabulated statements. A perusal of the text of the Notification indicates that any refund claim, which is filed under this Notification, shall be accompanied by documents evidencing (i) export of goods, (ii) payment of service tax on the specified services for which claim for refund of service tax is filed; (iii) agreement between the exporter and the foreign buyer etc. The appellant has contended that non-production of such documents is only a technical/procedural lapse and the same is condonable. The appellant wants the provisions of the Notification to be construed liberally. I do not think that the above requirements stipulated under the Notification are liable to be relaxed. The condition that the refund claim should be accompanied by documents evidencing export of goods, payment of service tax etc is of substantive nature and the same has to be complied with by the person claiming refund. Admittedly, the export documents and service tax payment documents were not produced by the assessee in support of their refund claims. It is pertinent to note that, in these appeals, the appellant has not adverted to unjust enrichment. Any claim for refund of service tax should also satisfy the mandatory requirements of Section 11B of the Central Excise Act read with Section 83 of the Finance Act 94. The lower authorities have also found that no documentary evidence against the bar of unjust enrichment was produced by the party. In the result, these appeals are dismissed.
(Dictated in Court.) (P.G. Chacko) Member (Judicial) rk 5