Custom, Excise & Service Tax Tribunal
C.C.E., Indore vs M/S. Suraj Impex (India) Pvt. Ltd on 14 August, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066.
Date of Hearing 14.08.2015
For Approval &Signature :
Honble Honble 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?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No.ST/532/2009-CU[DB]
[Arising out of Order-in-Appeal No.IND-I/115/2009, dated 22.04.2009 passed by C.C.E.(Appeals), Indore-I]
C.C.E., Indore Appellant
Vs.
M/s. Suraj Impex (India) Pvt. Ltd. Respondent
Appearance Ms. Suchitra Sharma, DR - for the appellant Mr. Ashutosh Upadhyay, Advocate - for the respondent CORAM: Honble Justice G. Raghuram, President Honble Mr. R.K. Singh, Member (Technical) Final Order No.52705/2015, dated 14.08.2015 Per Mr. R.K. Singh :
Revenue is in appeal against Order-in-Appeal dated 22.04.2009 which allowed refund of Rs.99,341/- under Notification No.41/2007ST, dated 06.10.2007.
2. The facts briefly stated are that the appellant filed refund claim of Rs. 2,70,461/- out of which the original adjudicating authority sanctioned an amount of Rs. 1,35,836/-. The respondent filed appeal before Commissioner (Appeals) contesting the rejection of refund of remaining amount. However, at the appellate stage, the respondent only contested the rejection of refund of an amount of Rs.99,341/- on the following grounds (i) refund of Rs.12,010/- was on account of the service tax paid on Technical Testing Services because as per the written agreement with the buyer of the exported goods the respondent was required to get the technical testing conducted. (ii) The amount of Rs.87,331/- was the service tax paid on wharfage charges which was paid under Port Services. (iii) Both these services are covered under Notification No.41/2007-ST. The Commissioner (Appeals) accepted the contention of the respondent and allowed a refund of Rs.99341/- (Rs.12,010/- + Rs.87,331/-).
2. Revenue in its appeal has contended that (i) the Technical Testing Charges were incurred during the procurement of goods. (ii) The issue before the appellate authority was whether the impugned services are eligible for refund under Technical Testing and Analysis Service and not the classification of the services. (iii) As regards the refund of Rs.87331/- Revenue contended that in support of its claim the respondent submitted bills raised by Bombay Port Trust and they were in the name of M/s. Micro Clearing Agency raised for demurrages, detention and wharfage charges and the services do not qualify under Notification No.41/2007ST. (iv) Revenue cited CESTAT judgement in the case of Velji P & Sons (Agencies) Vs. CCE, Bhavnagar [2007 (8) STR 236 (Tri-Ahmd)].
3. In its cross objections and during hearing the respondent argued that (i) technical testing and analysis agency service was used in relation to export goods as such testing was required to be undertaken as per the agreement with the buyers and the said service was covered under Notification No.41/2007ST, (ii) Regarding the refund of Rs.87,331/-, the service tax was paid under Port Services and invoices were issued by Mumbai Port trust in the name of the respondent and the copy of the invoices were duly produced before the Commissioner (Appeals) and were also enclosed with the memorandum of cross objection.
4. We have considered the contentions of both sides. As regards the refund of Rs.12,010/- on technical testing and analysis service, there is no doubt that the said service was used in relation to exported goods and such testing was required to be done as per the written agreement with the buyers and also the said service is duly covered under Notification No.41/2007ST, dated 06.10.2007 and therefore we fail to comprehend the ground on which the Revenue considered this amount of refund to be inadmissible. As regards the refund of Rs. 8 7331, we find that the invoices have been raised by Mumbai Port trust which clearly show the amount of service tax therein and the name of the respondent is also duly mentioned therein. Port services are specifically covered under Notification No.41/2007ST, dated 06.10.2007. The judgement of CESTAT in the case of Velji P & Sons (supra) is of no help to Revenue when the invoices themselves have been issued by Mumbai Port Trust and show the amount of service tax therein because the said judgement nowhere states that the refund of service tax paid under Port Services is not admissible as per Notification No.41/2007ST.
5. In view of the aforesaid analysis, we do not find any infirmity in the impugned order and therefore the Revenues appeal is dismissed.
(Justice G. Raghuram) President (R.K. Singh) Member (Technical) SSK -4-