Custom, Excise & Service Tax Tribunal
M/S. Lifelong Meditech Ltd vs Cce, Delhi-Iii on 11 May, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
SCO 147-148, SECTOR 17-C, CHANDIGARH-160017
SINGLE MEMBER BENCH
Court-I
Appeal No.E/53421/2014
[Arising out of the Order-in-Appeal No.97/SVS/GGN/2014 dt.27.2.2014 passed by the CCE (Appeals), Delhi-III)
Date of Hearing/Decision: 11.05.2016
For Approval & signature:
Honble Mr.Ashok Jindal, Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordships wish to see the fair copy of the order?
seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
M/s. Lifelong Meditech Ltd. Appellant
Vs.
CCE, Delhi-III Respondent
Present for the Appellant: Ms.Krati Somani, Advocate
Present for the Respondent: Shri M.R.Sharma, AR
Coram: Honble Mr.Ashok Jindal, Member (Judicial)
FINAL ORDER NO: 60017/2016
PER: ASHOK JINDAL
The appellant is in appeal against the impugned order rejecting refund claim on the services, namely, CHA service and courier service under Notification No.17/2009-ST dated 7.7.2009 on the ground that the appellant has failed to comply with the condition of notification.
2. Learned Counsel for the appellant submits that both services have been availed by the appellant in the course of their business of export of syringes and they are having correlation of services with shipping bills and invoices. It is also submitted that refund claim on CHA service has been denied on the premise that the name of CHA in the shipping bills is different as compared to actual service provider and correlation between the serve providers invoice and export is not established. She submits that the said issue was dealt with by the Tribunal in the case of Sopariwala Exports vs. CST, Mumbai-2015 (39) STR 884 (Tri.-Mum) wherein it has been held that the export consignment, as per Shipping Bill and the service provided in this regard are verifiable and co-relatable on the face of document in form of Shipping Bill number, Invoice Number, Container Number etc. In that circumstance, the appellant is entitled to refund claim.
3. For courier service, it is her submission that courier service has been availed by the appellant from the courier agency who has issued the invoices and merely the courier agency has not mentioned IEC code number of the exporter. Therefore, refund claim was sought to be denied. This fact has been established from the invoice received from the courier agency and service recipient and the said issue has been decided by the Tribunal in the case of Amar International vs. CST, Mumbai-2015 (37) STR 810 (Tri.). Therefore, the appellant is entitled for refund claim.
4. On the other hand, learned reiterated the finding of the impugned order and submitted that as the condition of the notification has not been strictly followed by the appellant therefore, they are not entitled to refund claim.
5. Heard the parties and considered the submissions.
6. The refund claim to the appellant has been denied in terms of Notification No.17/2009-ST dated 7.7.2009 on the following services:
(a) CHA service
(b) Courier service
7. For CHA service, the refund claim on CHA service has been denied on the premise that the name of CHA in the shipping bills is different as compared to actual service provider and correlation between the service providers invoice and export is not established. The said issue has been decided by the Tribunal in the case of Sopariwala Exports (supra) wherein it has been held as under:
6.1?As regards CHA/C&F service, sufficient co-relation was demonstrated during the course of hearing, that the export consignment, as per Shipping Bill and the service provided in this regard are verifiable and co-relatable on the face of document in form of Shipping Bill number, Invoice Number, Container Number etc. and as such, the ground on which such refund is denied, does not appear to be proper. As regards Shipping Bill showing name of different CHA as compared to the actual service provider, it is a practice in vogue to seek services by way of outsourcing by certain shipping lines/CHAs/freight forwarders to arrange for export of consignments for the exporters. In fact, similar situation was examined in the case of ADF Foods (supra) and refund was granted. As such, refund in respect of CHA and C&F agent service also is held allowable to the Appellant.
8. As the appellant has been able to establish correlation between the service providers invoice and exporter from the invoices and shipping bills, in that circumstance, I hold that the appellant is entitled for refund claim in light of the decision of the Tribunal in the case of Sopariwala Exports (supra). Therefore, the refund claim on CHA service is allowed to the appellant.
9. With regard to the courier service, the main reason for denial of refund is that the courier agency has not mentioned IEC code number of the exporter on the invoices. The said issue was dealt with in the case of Amar International (supra) wherein it has been observed as under:
3.?I have considered the submissions. As far as the refund of service tax paid on port service is concerned, objection is that the invoices are from M/s. Fourstar Enterprises who is a Customs House Agent and is not authorized to provide the terminal operator service and hence could have not provided and collected the service tax relating to port service. I find that the Customs House Agent in addition to handling the documentation and customs formalities, they also handle the goods in the port area and uses the services of various service providers operating in the port area. It is not in dispute the goods were exported, were handled in the port area, terminal handling operation were carried out and service tax on such port services was paid which would have been carried out at the instances of CHA perhaps by some other service provider/authority and under the circumstances it will not be appropriate to deny the refund of the service tax paid on the port service, just because invoices are of CHA who is not authorized to provide port service. In respect of the courier service, I find the objection is only that in the invoices issued by the courier agency service, export invoice number & IEC code of the appellant are not mentioned. There is no dispute that the details of the appellant/exporter as also description of goods are mentioned in these invoices. Under the circumstances the objections can at the most be called procedural infirmity. There is no dispute about the service tax payment and otherwise eligibility. Accordingly, I hold that the appellant is eligible to get refund of the service tax paid on the courier service. As far as technical testing and inspection service is concerned, appellant has failed to satisfy the conditions of Notification No. 41/2007-S.T., as they have not been able to produce any written agreement between the buyer and themselves or any statutory rules under which the said testing or inspections were carried out. In view of this position, they are not eligible for getting the refund of service tax paid on the Technical testing and inspection service. In respect of the Customs House Agent Service relating to appellant No. 1, the export invoice number is subsequently mentioned. Here again there is no dispute that the goods were exported and there is no dispute about the description or quantity and the goods. Objection is again procedural and the appellant is eligible to get the refund of the said service tax paid. In respect of appellant No. 2 some of the invoices are pertaining to period prior to 1-4-2008 and some of the invoices for period after 1-4-2008. Appellant No. 2 would be eligible to get the refund, in respect of the invoices which pertain to the period on or after 1-4-2008. In respect of refund of service tax on the said service the matter is remanded to the original authority to verify the details and thereafter sanction the refund in respect of the invoices which pertain to period after 1-4-2008.
10. After examining the said issue, this Tribunal allowed the refund on courier service. Therefore, I hold that the appellant is entitled for refund claim on courier service.
11. With these observations, I hold that the appellant is entitled for refund on the service tax paid on courier service and CHA service in terms of Notification No.17/2009-ST dated 7.7.2009.
12. In the result, the impugned order, is set aside and the appeal is allowed with consequential relief, if any.
(Dictated & Pronounced in the open court) (ASHOK JINDAL) MEMBER (JUDICIAL) mk 1