Custom, Excise & Service Tax Tribunal
For vs Shri A.B. Kulgod, Asst. Commissioner ... on 28 July, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. Appellant Respondent ST/267/11 Tumkar Minerals Pvt. Ltd. CCE Goa ST/284/11 Prime Minerals Pvt. Ltd. CCE Goa ST/285/11 Fomento (Karnatka) Mining Co. Pvt. Ltd. CCE Goa ST/286/11 Sociedade de Fomento Industrial Pvt. Ltd. CCE Goa ST/287/11 Sociedade de Fomento Industrial Pvt. Ltd. CCE Goa ST/288/11 Sesa Goa Ltd. CCE Goa ST/289/11 Sesa Goa Ltd. CCE Goa ST/290/11 Sesa Goa Ltd. CCE Goa ST/291/11 Sesa Goa Ltd. CCE Goa ST/292/11 Sesa Goa Ltd. CCE Goa ST/293/11 Sesa Resources Ltd. CCE Goa ST/294/11 Sesa Resources Ltd. CCE Goa ST/307/11 Dinar Tarcar Resources (India) Pvt. Ltd. CCE Goa ST/308/11 Minescape Minerals Pvt. Ltd. CCE Goa (Arising out of Order-in-Appeal No.21 to 46/2011 dated 31.01.2011 passed by Commissioner of Central Excise & Customs (Appeals), Panaji, Goa) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) ================================================
1. Whether Press Reporters may be allowed to see : No 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 : No 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?
Appearance:
Shri C.S. Biradar, Advocate Shri Mukesh Laddha, C.A. Shri Bharat Raichandani, Advocate for appellants Shri A.B. Kulgod, Asst. Commissioner (AR) for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 28.07.2015 Date of Decision: 28.07.2015 ORDER NO Per: M.V. Ravindran
All these appeals are filed against Order-in-Appeal No.21 to 46/2011 dated 31.01.2011. As all these appeals raise same question of law they are being disposed by a common order.
2. Heard both sides and perused the records.
3. The issue involved in all these appeals is whether the appellants herein are eligible for the refund of education cess paid on the service tax in respect of port related services technical testing and analyzing services. First appellate authority has held that appellants are eligible for refund of service tax paid by the service providers but are not eligible for the education cess paid on the service tax by the service providers and relied upon the conditions of Notification No.41/2007-ST to hold that the said Notification contemplates for the refund of service tax paid and not education cess. The first appellate authority has relied upon the decision of the Tribunal in the case of Balasore Alloys Ltd. 2010 (20) STR 506 (Tri. Kolkata).
5. Learned Counsel appearing on behalf of appellants would submit that the Central Board of Excise and Customs (CBEC) after noting the decision of the Tribunal in the case of Balasore Alloys Ltd. (supra) has, vide Circular No.134/3/2011ST dated 08.04.2011, clearly clarified wherever education cess has been refunded to the exporters along with service tax by virtue of exemption from whole of service tax, the same need not be recovered. It is the submission of the learned Counsel that this Circulars ratio has to be applied in the cases in hand and refund should be allowed. Learned Counsel would also submit that the Tribunal in the case of Cauvery Coffee Traders 2012 (07) LCX0265 considered the Circular and granted relief to the assessee therein and the said judgement was followed by the Tribunal in the case of CCE Mangalore vs. Kudremukh Iron Ore Co. Ltd. 2011 (12) LCX 0009.
6. Learned D.R. reiterated the findings of the first appellate authority.
7. On perusal of the impugned order we find that the first appellate authority set aside the order-in-original which granted refund to the appellant by relying on the judgement of the Tribunal in the case of Balasore Alloys Ltd. (supra) which is in favour of the Revenue. We find that the first appellate authority has not considered the subsequent judgements passed by the Tribunal in the case of Cauvery Coffee Traders and Kudremukh Iron Ore Co. Ltd. (supra). It is also to be noted that the CBEC Circular No. 134/3/2011 dated 08.04.2011 was issued specifically noting the judgement of the Tribunal in the case of Balasore Alloys Ltd. (supra) and the Boards view is if that education cess paid on the service tax by the service providers is also to be refunded to appellants. We find that the ratio of the judgement of the Tribunal in the case of Cauvery Coffee Traders and Kudremukh Iron Ore Co. Ltd. (supra) is the correct view as if the service tax liability is discharged on which education cess is paid on the goods exported, the benefit of refund of such education cess paid should not be denied when the export of goods is not in dispute..
8. In view of the foregoing, we find that all appellants are eligible for refund of education cess paid on the service tax by the service providers.
9. All the appeals are allowed with consequential relief.
(Dictated in Court) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk ??
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