Custom, Excise & Service Tax Tribunal
M/S. Vippy Industries Ltd vs Commissioner Of Central Excise on 29 November, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Service Tax Appeal No. 873 of 2010
Service Tax Appeal No. 1072 of 2010
Date of Hearing: 09.10.2012
Date of Hearing: 29.11.2012
[Arising out of Order-in-Appeal No. IND-I/025/2010 dated 28.1.2010 passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals), Indore]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Mathew John, 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 : No
of the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair : Seen
copy of the Order?
4. Whether Order is to be circulated to the : Yes
Departmental authorities?
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M/s. Vippy Industries Ltd. Appellants
Vs.
Commissioner of Central Excise, Respondent
Indore
Appearance:
None for the Appellants
Shri Govind Dixit, DR for the Respondent
CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Mathew John, Member (Technical)
ORAL ORDER NO . ________________________
Per Archana Wadhwa ( for the Bench):
The appellants have made a request to decide the appeal on the basis of written submissions filed by them. Accordingly, we have heard Shri Govind Dixit, learned DR appearing for the Revenue and have gone through the impugned order.
2. As per facts on record, the appellant is engaged in the manufacture and export of soya milk. They filed refund claim for refund of Cenvat Credit to the tune of Rs.12,58,809/- and Rs.10,41,877/- (in two appeals i.e. ST/ 873/2010 and ST/1072/2010) in terms of Notification No. 41/07 for the period January, 2009 to March, 2009.
3. The said refund claim was adjudicated by the Assistant Commissioner who observed that the appellant has fulfilled all the conditions of Notification No. 41/07 dated 6.10.07. He accordingly, allowed the majority of refund claim, but rejected the claim of Rs.35,255/- and Rs. 19131/- on the ground that the Service Tax stand paid by the appellant in respect of movement of empty containers from the stock yard to the appellants factory cannot be considered as the input services. Further claim of Rs.13,277/- and Rs.8219/- stand rejected on the ground that same stands paid as Service Tax on detention charges which cannot be considered to be input services. Accordingly, he rejected the refund of Rs.48, 532/- and Rs.27,350/-.
4. The said order of Assistant Commissioner stand challenged before Commissioner (Appeals), who also rejected the appeal by observing that the Service Tax paid on transportation of the containers from the stock yard to appellants factory is not admissible to the appellants. Similarly, in respect of detention charges also, he observed that the refund is not admissible as the same are not specified service under Notification No. 41/07 dated 6.10.07.
5. As regards the first issue, we find that the same is no longer res integra and stand settled in the following cases:
1. CCE, Madurai vs. Tata Coffee Ltd.
[2011 (21) STR 546 (Tri-Chennai)];
2. Balkrishna Industries Ltd. vs. CCE Aurangabad [2011 (24) STR 433 (Tri-Mum)];
3. Garware Polyester Ltd. vs. CCE Aurangabad [2011-IST-400-CESTAT-MUM]
6. It stands held in all the above mentioned cases that the refund of Service Tax paid on the transportation of empty containers from yard to the factory for stuffing of the export goods is admissible inasmuch as the said activity is in relation to the transportation of the export goods. As such, by following the decision of the above judgement, we hold that the appellant is entitled to the refund of Service Tax paid on the said activity of movement of empty containers from the yard to factory premises.
7. As regards the refund of service tax paid by the appellant as Service Tax on the detention charges, the appellants contention is that such detention charges is a part of transportation charges which was used for transportation of export goods. The department has accepted the payment of Service Tax on such detention charges and as such, they cannot take the different view for the refund of the same.
Such detention charges are paid on containers waiting for their turn to be cleared. As such, till the appellant is given the green signal for clearance of the containers, the appellant is not able to export the goods. As such, broadly speaking, such detention charges are in relation to transportation of the export goods. Tribunal in the case of CCE Madurai vs. Tata Coffee Ltd. reffered supra has observed that the expression in relation to transportation of export goods is wide enough. Till the transportation is factually completed the charges paid for detention of the same prior to the completion have to be held as in relation to transportation of the export goods. As such, we are of the view that appellants claim for refund of the same is entitled to be allowed.
8. In view of the above, we set aside the impugned order and allow the appeal with consequential relief to the appellant.
(Pronounced in the open court on 29.11.2012 )
( Archana Wadhwa ) Member(Judicial)
( Mathew John )
Member(Technical)
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