Custom, Excise & Service Tax Tribunal
M/S Shrikant Sopanrao Endait vs Commissioner Of Central Excise, Nashik on 24 February, 2016
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. I APPEAL NO. ST/301/10 & ST/230/11-Mum (Arising out of Order-in-Appeal No. AKP/07/NSK/2011 dated 24.01.2011 passed by the Commissioner of Central Excise & Customs (Appeals), Nashik.) 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? ===================================================== M/s Shrikant Sopanrao Endait Appellant Vs. Commissioner of Central Excise, Nashik Respondent Appearance: Shri Venkatesh Iyer, Consultant for Appellant Shri B. Kumar Iyer, Supdt. (A.R.) for Respondent CORAM: HONBLE SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) HONBLE SHRI C.J. MATHEW, MEMBER (TECHNICAL) Date of Hearing: 24.02.2016 Date of Decision: 24.02.2016 ORDER NO. Per: M.V. Ravindran:
These two appeals are filed against Order-in-Appeal No. AKP/07/NSK/2011 dated 24.01.2011 passed by the Commissioner of Central Excise & Customs (Appeals), Nashik.
2. Since the appeals are inter connected, they are being disposed of by a common order.
3. In appeal No. ST/301/10, the issue involved is regarding the classification of the services rendered by the appellant as to whether it would fall under Technical Inspection and Certification Services or Technical Testing & Analysis Services of the goods for the period 2007-08, in appeal No. ST/230/11, the issue involved is regarding the consequent refund claim filed by the appellant partly allowed and partly rejected and confirmation of the demand raised on the erroneously sanctioned refund.
4. The relevant facts that arises for consideration after filtering out un necessary details are appellant herein is engaged in providing services to M/s JMRI, INC, Florida, United States of America to provide seafood inspection services in respect of seafood which M/s JMRI intends to purchase and appellant was required to do the inspection. Appellant obtained Service Tax registration under the category of Technical Inspection and Certification Services and paid Service Tax, but subsequently filed refund claim on the ground that their services are rightly covered under the Technical Testing & Analysis Services but exempted as such testing are provided in relation to human beings or animals. The refund claim of Rs. 3,31,831/- was disposed of by allowing a refund claim of Rs. 1,53,875/- and rejecting the balance amount on the ground of limitation.
5. Heard both sides and perused the records.
6. The case of the appellant in the classification of the services is that the agreement entered by them with M/s JMRI includes the testing of seafood as per the agreement, reports submitted by the appellant herein. Learned Departmental Representative would reiterate the findings of the lower authorities.
7. On perusal of the agreement, we find that the said agreement entered by the appellant with M/s JMRI talks about seafood inspection for seafood at various places on product purchase by M/s JMRI, testing of seafood, factory audit with respect to compliance of quality and file reports of the same to M/s JMRI. There is no dispute that the appellant had treated the seafood as goods and Revenue is also not aggrieved by the same. In our considered view, from the agreement we find that the activity of the appellant is not only inspection of the facility and certification of the factory, but also include the result analysis of the seafood which were sampled by the appellant and send for testing. The report submitted by the appellant on the Audit conducted by them also shows that the testing on the various seafoods. In our view, if the inspection of the seafood and analysis thereof as to adherence to the quality as prescribed by M/s JMRI, would fall under the category of Technical Testing & Analysis Services, eligible for exemption granted for Technical Testing & Analysis Services on human beings or animals as there cannot be any doubt that seafood are nothing but a kind of animals. The first appellate authority as well as adjudicating authority miss-construed the purpose of agreement, the said agreement entered by the appellant requires as per complete inspection of the facility including quality of the seafood. In view of the foregoing the impugned order is to the extent it holds that the services rendered by the appellant would fall under the category of Technical Inspection and Certification Services is incorrect and liable to be set aside and we do so.
8. As regards the appeal No. ST/230/11, we find that consequent to the findings recorded by the Bench in the appeal No. ST/301/10 the issue in this appeal is mere of academic nature. The confirmation of the demand raised of erroneous sanctioned Rs. 1,53,875/- which is in contest in this appeal needs to be set aside and we do so. Further, the contention of the appellant that they are eligible to refund claim of Rs. 1,77,956/- is rejected as it is very clear that the refund claim is beyond the limitation period as provided under Section 11B of Central Excise Act, 1994. We find that in the case in hand looking at the issue from another angle, the Service Tax liability on the appellant is refundable to him as the goods which are inspection services as provided by the appellant is to a person situated abroad. This ratio is settled by the Hon'ble High Court of Bombay in the case of M/s SGS India Pvt. Ltd. 2014-TIOL-580-HC-MUM-ST. The appellant is entitled to refund of the amount which is falls within limitation period. Accordingly, the appeal No. ST/230/11 is disposed of as indicated hereinabove.
9. Appeals are disposed of as indicated hereinabove.
(Operative portion of the order pronounced in open Court) (C.J. Mathew) (M.V. Ravindran) Member (Technical) Member (Judicial) Sp 5 APPEAL NO. ST/301/10 & ST/230/11-Mum