Custom, Excise & Service Tax Tribunal
M/S. Lakshmi Machine Works Ltd vs Commissioner Of Central Excise, ... on 5 December, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
ST/195/2010
(Arising out of Order-in-Appeal No. 23/2010-ST dated 5.3.2010 passed by the Commissioner of Central Excise (Appeals), Coimbatore)
M/s. Lakshmi Machine Works Ltd. Appellant
Vs.
Commissioner of Central Excise, Coimbatore Respondent
Appearance Shri A.R. Sreenivasan, Advocate for the Appellant Shri S. Govindarajan, AC (AR) for the Respondent CORAM Honble Ms. Sulekha Beevi C.S., Member (Judicial) Honble Shri Madhu Mohan Damodhar, Member (Technical) Date of Hearing / Decision: 05.12.2017 Final Order No. 43061 / 2017 Per Bench The appellants filed refund application dated 25.2.2008 for refund of service tax amounting to Rs.4,07,992/- under Notification No. 40/2007-ST dated 17.9.207 for the period 1.1.2008 to 31.3.2008. On scrutiny of the refund claim, a show cause notice was issued to the appellant proposing to reject the claim on various grounds. After adjudication, the refund sanctioning authority rejected the refund claim. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal.
2. On behalf of the appellant, ld. counsel Shri A.R. Sreenivasan submitted that the authorities below have rejected refund claim on the following grounds:-
(i) The services for which the present claim has been made are not the ones specified in the schedule of the said notification.
(ii) The documents have been raised on different persons as service receiver but the assessee have claimed refund based on such documents
(iii) Documents evidencing payment of service tax on the specified services for which claim for refund of service tax paid is filed, have not been produced and
(iv) Some of the services involved in the present refund claim were not made in the quarter ending 31.3.2008.
3. He submits that all these services were availed in relation to export of goods and that appellant had engaged different agents from the factory gate upto the port for export of the goods. Though the expenses are paid on behalf of the appellant, the authorities below rejected the refund claim stating that the invoices are not issued in the name of the appellant but raised in the name of M/s. Lakshmi Cargo Company Ltd. which is a group company of the appellant. The appellants had produced all documents to establish that they had paid service tax but the said ground has not been considered. It is also argued by the ld. counsel that the place of removal should not be treated as a factory gate and the goods having been exported, the place of removal has to be the port and in the light of CBEC Circular No. 97/8/2007 dated 23.8.2007, appellant would be eligible for grant of refund. It is submitted by him that the authorities below have rejected the refund claim for the reason that the CHA services, clearing and forwarding agency services, GTA services, port services etc. are not specified services under the Notification No. 40/2007. He argued that the said services have been included and made specified services by later Notification No. 17/2008 dated 1.4.2008. The notification of the Government is not to export taxes and therefore refund ought to be granted applying the Notification No. 17/2008.
4. The ld. AR Shri S. Govindarajan opposed the appeal. He submitted that the appellant has filed the refund claim as per Notification No.40/2007. The impugned services for which refund has been sought are not specified services as per the said Notification. Though by a later Notification No. 17/2008, the said services have been included as specified services, such later notification has come into effect only from 1.4.2008. That therefore the authorities below have rightly denied the refund claim.
5. Heard both sides.
6. We find that the main contention for which the refund claim has been rejected is for the reason that the impugned services are not specified services as per Notification No. 40/2007 dated 17.9.2007. It is not disputed that the appellant has filed the refund claim under the said notification. However, later by Notification No. 17/2008 dated 1.4.2008, the impugned services have been included in the specified services. Since the refund claim pertains to services prior to 1.4.2008, we are of the view that the appellant having sought refund under Notification No.40/2007 is not eligible for the refund since these are not specified / exempted services as per this notification. Accordingly, we hold that the authorities below have rightly rejected the refund claim. The impugned order is upheld and the appeal is dismissed.
(Operative portion of the order was
pronounced in open court)
(Madhu Mohan Damodhar) (Sulekha Beevi C.S.)
Member (Technical) Member (Judicial)
Rex
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