Custom, Excise & Service Tax Tribunal
M/S.Khemchand Handicrafts vs Cce, Jaipur on 18 March, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI Date of Hearing/Decision:18. 03.2016 ST Appeals Nos.809, 825 and 891/2009 [Arising out of Order-in-Appeal No.99/KKG/ST/JPR-II/09 dated 3.8.2009 in Appeal No.809/2009, Order-in-Appeal No.105/KKG/ST/JPR-II/09 dated 13.08.2009 in Appeal No.ST/825/2009 and Order-in-Appeal No.75/KKG/ST/JPR-II/09 dated 31.07.2009 in Appeal No.ST/891/2009, passed by the Commissioner (Appeals-II), Customs & Central Excise, Jaipur]. For Approval and Signature: Honble Smt. Archana Wadhwa, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 1 Whether Press Reporters may be allowed to see 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 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? M/s.Khemchand Handicrafts Appellants M/s.Bhansali International M/s.Saraswati Art Palace International Ltd. Vs. CCE, Jaipur Respondent
Appearance:
Rep. by Shri O.P. Agarwal, C.A. for the appellant..
Rep. by Shri Ranjan Khanna, AR for the respondent.
Coram: Honble Smt. Archana Wadhwa, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Orders Nos. 51071-51073/2016 dated:18.03.2016 Per B. Ravichandran:
These three appeals are on a similar issue and so are taken up for disposal together.
2. The appellants are engaged in export of goods and filed refund claims in terms of Notification No.41/2007-ST dated 6.10.2007, as amended by Notification no.42/2007-ST. The Original Authority rejected the claim of the appellant on various grounds. On appeal, vide impugned orders, ld. Commissioner (Appeals) also upheld the rejection of refunds.
3. Aggrieved by this, the appellants are before use.
4. Ld. Counsel for the appellants submits that various categories under which the claims were made and stand rejected are as below:-
(a) Services covered under the category of Port Services The Lower Authorities rejected the claim mainly on the ground that the various services on which service tax has been paid, like terminal handling charges, documentation charges, bill of lading charges, etc. are not covered under the category of port services as they are neither provided by the port nor by the persons authorized by the port authorities. Further, the service tax paid by the provider of service was not remitted under that category. It is the case of the appellant that all these services are availed by them in connection with the export of their goods during the export through specified ports and their liability is settled in various decided cases.
(b) The service tax paid on the GTA services was rejected only on the ground that the proof of payment has not been submitted. Ld. Counsel submits that the invoices issued by the GTA have reference to export document.
(c) The service tax paid on the CHA services were rejected on the ground that the debit notes are not one of the prescribed documents for claiming refund. The appellants submitted that all the required details are available in debit notes and as such, they are rightly eligible for refund.
(d ) The service tax paid on cleaning activity stands rejected on the ground that the conditions mentioned for availing refund of such services have not been fulfilled. Ld. Counsel submits that the specialized cleaning is mandatory for exporting their goods and the procedure of written agreement should not be insisted upon.
(e) The rejection of service tax paid on courier charges is on the ground that the documents issued by the service provider did not carry all the required particulars. Here also, ld. Counsel submits that all the invoices issued by the courier agents contain link to the export documents to satisfactorily fulfill the claim for refund.
(f) Service tax paid on technical inspection service stands rejected on the ground of non-fulfilment of the conditions specified in the notification. The appellantss plea that the procedural requirement can be waived when substantial conditions are fulfilled.
5. Ld. AR while supporting the findings in the impugned order submitted that the various services on which the service tax has been paid by the appellant and which are sought to be categorized under the port services are not eligible for refund as there is no evidence as to the provider of service has actually provided the services under the said category. There is no evidence also to link these services to the specific exports made by the appellant. Similarly regarding GTA services, CHA services and courier services, it is the contention of the ld. AR that in absence of full particulars of export goods with connected documents. the claim for refund cannot be entertained. The conditions mentioned in the last column of the notification are statutory requirement and cannot be considered as procedural in nature.
6. We have heard both the sides and examined the appeal records.
7. On the first point regarding the various services on which service tax refund has been claimed by the appellants under the category of Port Services, we find the similar matter has been the subject matter of decision in various cases by the Tribunal and the Honble Gujarat High Court. In recent decision vide Final Order No.53916-53918/2015-ST (DB) dated 26.11.2015, the Tribunal examined the eligibility of similar set of services for refund under the same notification. Relying on the earlier decisions, the Tribunal held that these services are essentially covered under the Port Services and are eligible for refund under the said notification. The Tribunal also decided regarding documents required for considered refund in respect of GTA Services. The Tribunal also examined admissibility of debit note as a document for refund claim. We find that as long as the documents issued by the service provider contain essential information to link up the tax payment to the export of the goods, the refund should be held eligible. As such, the debit note issued by the CHA, invoice issued by the GTA Service provider, should be considered as relevant document for claiming refund if they contain all the required particulars.
8. Regarding service tax paid on cleaning and technical testing, we find that the appellants have not fulfilled the required conditions as mentioned in the notification. The conditions stipulate the existence of written agreement and the accreditation of the service provider in respect of the cleaning services, and in respect of the technical testing, the requirements are written agreement and the invoice to contain the details of export goods. We find that while agreement can be inferred in terms of the transaction also, the conditions of the service provider to be accredited cannot be considered as procedural. Since in the present case, it is fairly conceded by the ld. Counsel that they are not having details of such accreditation, refund of service tax in respect of cleaning activities cannot be considered as eligible. Similarly for technical inspection service also supporting evidence for fulfillment of essential conditions have not been provided. Hence, the claim for refund cannot be considered.
9. Considering the above position, we find that the appellants could not satisfactorily make out case against rejection on these two services. Considering the above analysis and discussion, we find that the appellants are eligible for refund in respect of the various services categorized at port services in terms of the above analysis, GTA Services, CHA services and courier services and not in respect of cleaning activity and testing services. Keeping in view these findings, we direct the Original Authority to arrive at the eligible quantum of refund amount in the light of the above observation. All the three appeals are disposed of in the above terms.
[order dictated and pronounced in open court]
( Archana Wadhwa ) Member (Judicial)
( B. Ravichandran )
Member (Technical)
Ckp.
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