Custom, Excise & Service Tax Tribunal
Bharat Art & Crafts vs C.C.E., Jaipur Ii on 5 February, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing/decision: 05.02.2016 Service Tax Appeal Nos.1007, 1008 and 1016 of 2009 Arising out of the Order-in-Appeal No.222/KKG/ST/JPR-II/09; 221/KKG/ST/JPR-II/09 and 237/KKG/ST/JPR-II/09 all dated 19.10.2009 passed by the Commissioner of Central Excise (Appeals-II), Jaipur. For approval and signature: Honble Mr. Justice G. Raghuram, President Honble Mr. R.K. Singh, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Bharat Art & Crafts Appellants Shivam Export (100% EOU) Bothra International Vs. C.C.E., Jaipur II . Respondent
Appearance:
Present Shri O.P. Agarwal, C.A. Advocate for the appellants Present Shri Ranjan Khanna, A.R. for the respondent/Revenue Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. R.K. Singh, Technical Member Final Order No. 50212 50214/2016 Per R.K. Singh:
These appeals have been filed against respective orders-in-appeal in terms of which refund under Notification No.41/2007-ST dated 6.10.2007 were rejected. The essential details of the refunds rejected and the period involved and the ground of rejection along are summarized in the chart below:
S. No. of Cause List dt.05.01.16 Appeal No. Name of the party Amount rejected Period of rejection Grounds of rejection 11 ST/1007/2009 M/s Bharat Art & Crafts, Jodhpur 72,550/-
01.01.2008 to 31.3.2008
1. Exports under claim of Drawback
2. Did not file declaration under Notification as the Appellant was not registered both under Central Excise Act, 1944 as well as Finance Act, 1994
3. Services not covered under Port Services
4. Non submission of proof of payment of service tax on GTA services
12.
ST/1008/2009 M/s Shivam Exports, Jodhpur 76,688/-
01.07.2008 to 30.09.2008
1. Services not covered under Port Services,
2. Non submission of proof of payment of service tax on GTA services
3. Proper invoice not submitted (Debit Note not prescribed document)
4. CHA services as per OIO, description of goods not mentioned in the invoices issued by CHA.Further, details of other expenses not given.
15. ST/1016/ 2009M/s Bothra International 59,710/-
01.01.2008 to 31.03.2008
1. Export under claim of Drawback
2. Services not covered under Port Services
3. Non submission of proof of payment of service tax on GTA services
4. Proper invoice not submitted (Debit Note not prescribed document).
2. As regards the appeals of M/s Bharat Arts & Crafts and M/s Bothra International are concerned, ld. Consultant for the appellant concedes that they exported goods under claim of drawback under Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 but contended that drawback did not include the service tax paid on the impugned input services because as per the Drawback Rules, the average amount of tax paid on taxable services which are used as input services for the manufacturing or processing or for containing or packing the export goods are taken into account while fixing the all industry drawback rates as is evident from Rule 3(2)(ea) of the Customs Central Excise Duties and Service Tax Drawback Rules, 1995 and the impugned services these services were used after clearance of the goods from the factory. In this regard, it is useful to reproduce below the provision of the said Rule. Rule 3(2)(ea): In determining the amount or rate of drawback under this Rule, the Central Govt. shall have regard to the average amount of tax paid on taxable services which are used as input services for the manufacturing or processing or for containing or packing the export goods. It is evident from the above quoted Rule that it merely makes it mandatory for the Central Government to have regard to the average amount of tax paid on taxable services which are used as input services for the manufacturing or processing or for containing or packing the export goods. It by no means implies that Central Government is forbidden to have regard to other input services like the ones involved in these appeals while fixing the all industry rates of drawback. Notification No.41/2007-ST contained a proviso during the relevant period which stated that the said goods have been exported without availing drawback of service tax paid on the specified services under the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. There is no doubt that the impugned services were input services. If the contention of the appellant that these services were not included in fixing the all industry rates of drawback was true then there was no need to incorporate the said proviso in Notification No.41/2007-ST as the said proviso would in that case be redundant. There is natural presumption that legislature would not incorporate redundant provisions in law. Further if the said proviso did not affect the eligibility of the exporters for refund under Notification No.41/2007-ST then there was no need for the Govt. to delete the said proviso vide Notification No.33/2008-ST dated 7.12.2008.There is nothing in Notification No.33/2008-ST dated 7.12.2008 which expressly or impliedly gave it retrospective effect. It is thus clear that when the goods were exported under claim of drawback, the impugned refund claims would not be admissible by virtue of proviso (e) to Notification No.41/2007-ST. It has been so held by CESTAT also in the case of Rajasthan Textile Mills vs. C.C.E., Jaipur 2015 (37) STR 410 (Tri-Del.).
3. However as regards the appeal No.ST/1008/2009 in respect of Shivam Exports as pleaded by the appellant the grounds namely services not covered under port service, non-submission of proof of payment of service tax under GTA service and and debit note not being prescribed document for this purpose have been analysed in appellants own case and decided in its favour vide CESTAT Final Order No.ST/A/53916 53918/16-CU (DB) dated 26.11.2015. Regarding CHA services the benefit was denied as the description of goods was not mentioned in the invoice issued by CHA. We have perused the representative invoices of CHA and find that bills of lading and container numbers are clearly mentioned therein and thus it would be quite possible to link as to which goods the CHA bills related to. Therefore this ground for denial of refund in respect of CHA services is not sustainable.
4. In the light of the foregoing, Appeal No.ST/1016/2009 in respect of Bothra International and Appeal No.ST/1007/2009 in respect of Bharat Art & Crafts are dismissed. ST Appeal No.1008/2009 in respect of Shivam Exports is allowed.
(Justice G. Raghuram) President (R.K. Singh) Technical Member scd/ Defence To be explained
1. Declaration already filed.
2. Otherwise also filing of declaration is only a procedural requirement as per Supreme Court in the case of Mangalore Chemicals 1991 (55) ELT 437 (SC). Export of goods and use of tax paid specified services in such export goods is basic requirement.
Both the issues now covered in favour of appellant vide Final Order No.53916 53918/2015-CU (DB) dated 26.11.2015 passed by the Honble Tribunal.
All the three issues now covered vide Final No. 53916 53918/2015-CU (DB) dated 26.11.2015 passed by the Honble Tribunal, in appellant own case.
All the three issues now covered vide Final No. 53916 53918/2015-CU (DB) dated 26.11.2015 passed by the Honble Tribunal, in appellant own case.
To be explained All the three issues now covered in favour of appellant vide Final Order No. 53916 53918/2015-CU (DB) dated 26.11.2015 passed by the Honble Tribunal.
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