Custom, Excise & Service Tax Tribunal
M/S Arihant Tiles & Marbles Pvt. Ltd vs Cce, Jaipur on 9 January, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 9.1.2015
Appeal No. ST/1564/2010
&
ST/ 157-158/2011-CU(DB)
[Arising out of Order-in-Appeal No. 282(CB)ST/JPR-II/2010 dated 29.7.2010 & 409-410(CB)ST/JPR-I/2010 dated 12.10.2010 passed by the Commissioner, Central Excise, Jaipur]
For Approval & Signature :
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. R.K. Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would 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 Department Authorities?
M/s Arihant Tiles & Marbles Pvt. Ltd. Appellant
Vs.
CCE, Jaipur Respondent
Appearance:
Shri B.L. Narasimhan, Advocate - for the Appellant
Shri Amresh Jain, A.R. - for the Respondent
Coram : Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. R.K. Singh, Member (Technical)
F. Order No.50115-50117/2015
Per Ashok Jindal :
The appellants are in appeals against the impugned order rejecting their refund claim on various grounds.
2. The facts of the case are that the appellants are the exporter of goods and they filed refund claim of the service tax which were used by them in export of goods under Notification No. 41/2007-ST dated 6.10.2007.
3. As all the appeals are having a common issue therefore all the appeals are decided by a common order. The refund claims were rejected on the following grounds :
(a) The service provider is not registered under port services to provide the service to the appellant:
(b) Various services on which the appellants sought refund are not port services;
(c) Refund claim of service tax of Rs.92,833/- is barred by limitation;
(d) The lorry receipts in case of GTA service have no mention of the details of goods exported. Therefore, all the refund claims were rejected.
4. Heard the parties. After hearing the parties, we observe that the decision of Larger Bench of this Tribunal in the case of Western Agencies Pvt. Ltd. Vs. CCE, Chennai - 2011 (22) STR 305 (Tri.-LB) wherein it was held that any services availed by in export of goods in port area is a port service and the said view affirmed by the Honble High Court of Gujarat in the case of Commissioner Vs. Adani Enterprises Ltd. - 2014 (35) STR 741 (Guj.) to say that the services received at port are covered under port service and the circular dated 12.3.2009 is clarificatory in nature.
5. In these circumstances, we hold that if the services are availed by the appellant in port area for export of their goods, the appellants are entitled for refund, this fact is to be examined by the adjudicating authority.
6. We find that the refund claim of Rs.92,833/- has been rejected as time-barred but the CBEC Circular No. 112/6/2009-ST dated 12.3.2009 clarifies that for the quarter ending March to June 2008 the refund can be till filed till 30-12-2008. Admittedly, in this case the appellant has filed a refund claim for the quarter ending June 2008 on 2.6.2008 to 4.8.2008 therefore we hold that the refund claims were filed in time.
7. We further find that in the case GTA service, the refund claim has been rejected on the premise that the lorry receipt does not have any mention details of the export documents which can be verified by examining the export documents which the appellant will produce before the adjudicating authority.
8. In these circumstances we set aside the impugned order and remand the matter back to the adjudicating authority to re-examine the issue in the light of discussion herein above on production of relevant documents to be asked to be filed by the appellant within 15 days of the receipt of this order and thereafter the appellant shall file within 15 days of the communication and thereafter the adjudicating authority shall decide the claim of refund within a period of two months. The appeals are disposed of by way of remand.
(Dictated & pronounced in open Court) (Ashok Jindal) Member (Judicial) (R.K. Singh) Member (Technical) RM 1