Custom, Excise & Service Tax Tribunal
Cce & St, Indore vs National Steel & Agro Industries on 1 January, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Date of Hearing/Order : 1.1.2016 For Approval & Signature : Honble Mr. Justice G. Raghuram, President 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? Appeal No. ST/530 & 702/2009-CU(DB) (Arising out of Order-in-Appeal No. IND-I/81 & 141/09 dated 26.3.2009 & 22.11.2008 passed by the Commissioner (Appeals), Customs & Central Excise, Indore) CCE & ST, Indore Appellant Vs. National Steel & Agro Industries Respondent
Appearance Shri Ranjan Khanna, D.R. - for the appellant Shri Narendra Singhvi, Advocate for the respondent Appeal No. ST/598/2009-CU(DB) (Arising out of Order-in-Appeal No. IND-I/81/09 dated 26.3.2009 passed by the Commissioner (Appeals), Customs & Central Excise, Indore) M/s National Steel & Agro Industries Ltd. Appellant Vs. CCE & ST, Indore Respondent Appearance Shri Narendra Singhvi, Advocate - for the appellant Shri Ranjan Khanna, D.R. - for the respondent CORAM: Honble Mr. Justice G. Raghuram, President Honble Mr. R.K. Singh, Member (Technical) Final Order No. 50065-50067/2016 Per R.K. Singh:
These three appeals have been filed against respective orders-in-appeal, two by Revenue and one by the assessee. The issues involved in these cases are :
(i) Whether refund claim filed in a division other than the division where it should have been filed will be treated as time-barred even if it was first filed within 60 days (the time prescribed under Notification No. 41/2007) but (re) filed in the proper division after the prescribed period.
(ii) Whether the freight involved in transporting empty containers from port to factory for carrying goods to the port for export is to be treated as eligible to be considered as freight incurred in connection with the export of goods and therefore service tax leviable thereon is eligible for refund.
(iii) Whether the service tax paid on LDD and TSC charges is eligible for the purpose of exemption under Notification No. 41/2007-ST. LDD and TSC charges are the charges recovered by CONCOR for providing facility to keep loaded containers beyond the free period.
2. As argued by the appellant-assessee, all these issues are no longer res integra. In the case of Vippy Industries Ltd. Vs. CCE 2013 (32) STR 213 (Tri.-Del.) it was essentially held that the service tax paid on the freight charges attributable to return of empty containers to factory was eligible for refund as the activity was in relation to transport of export goods. In the case of Vippy Industries Ltd. Vs. CCE, Indore 2013 (30) STR 238 (Tri.-Del.), it was held that the service tax paid on detention charges paid on containers waiting to be cleared are also in relation to transportation of export goods and therefore were eligible for refund under Notification No. 41/2007-ST. As regards the issue of time bar, Gujarat High Court in the case of CCE Vs. AIA Engineering Ltd. 2011 (21) STR 367 (Guj.) essentially held that refund application filed with another authority within 60 days and returned for filing before appropriate authority would not be hit by time bar, even if in such a situation it was filed beyond the period of 60 days before the appropriate authority.
3. In the light of the above cited judicial precedents, Revenues contentions that:
(i) The refund claims will be treated as time-barred as they were filed beyond the period of 60 days before appropriate authority although filed within the said time limit in another division which was not the jurisdictional division and
(ii) Service tax paid on LDD and TSC charges was not eligible for refund are not tenable. On the other hand, the contention of the appellant that refund of service tax paid on fright charges for bringing empty containers from port to factory for carrying export goods is sustainable.
4. In the light of the foregoing analysis, Revenues Appeals No. ST/530/2009 and ST/702/2009 are dismissed and assessees Appeal No. ST/598/2009 is allowed with consequential relief.
(Justice G. Raghuram) President (R.K. Singh) Member (Technical) RM 2