Custom, Excise & Service Tax Tribunal
M/S. Toshniwal Associates Pvt. Ltd vs C.C.E. Jaipur-Ii on 19 May, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Service Tax Appeal No. ST/938/2009-[DB]
[Arising out of Order-In-Appeal No. 107(KKG)ST/JPR-II/2009 dated: 18.08.2009 passed by Commr. (Appeals-II) Jaipur]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
Honble Mr. R. K. Singh, 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. Toshniwal Associates Pvt. Ltd. ...Appellant
Vs.
C.C.E. Jaipur-II Respondent
Appearance:
Mr. O.P. Agarwal (Consultant) for the Appellant Mr. Vaibhav Bhatnagar, (DR) appeared for the Respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Honble Mr. R. K. Singh, Member (Technical) Date of Hearing/ Decision.19.05.2016 Final Order No. 53022/2016 Per S. K. Mohanty:
Appeal is filed against Order-in-appeal dated 18.08.2009 in terms of which Service tax refund of Rs. 61,893/- pertaining to period 1.10.2007 to 31.12.2007 was rejected on the following grounds.
(i) Refund claim on THC charges, bills of lading charges, origin haulage charges, repo charges rejected on the grounds that the same are not covered under Port Services as the service providers are registered under different category and proof of deposition of tax under port services not produced.
(ii) Non submission of proof of payment of service tax on GTA services.
(iii) Proper invoice not submitted (debit notes not prescribed documents).
(iv) Cleaning activity as per OIA condition of Notification not satisfied, particularly, service provider not approved as accredited agency.
(v) Rejection of Service Tax paid on technical inspection and certification services on the ground that conditions of exemption Notification not fulfilled.
2. Heard both sides.
3. The Ld. Advocate states that the grounds of rejection mentioned in serial No. (i), (ii) & (iii) have been found to be untenable by CESTAT vide its following judgments.
(i) Shivam Exports & Ors. Final Order No. ST/A/53916-53918/16-CU dated 26.11.2015,
(ii) SRF Ltd. vs CCE, Jaipur 2015-TIOL-2241-DEL (CESTAT),
(iii) Suncity Art Exports & Ors. Final Order No. ST/A/54038-54068/14-CU dated 16.10.2014.
4. With regard to Cleaning activity, the submissions of the Ld. Consultant are that such service is related to fumigation of export container and without fumigation, export could be made. He further submits that fumigation of container was not taxable as per the Boards Circular dated 12.01.2011. He also produced the certificate issued by the Competent Authority.
5. We find that the Ld. Consultant is right in claiming that the issues mentioned at Sr. No. (i) (ii) & (iii) are indeed covered in assessees favour by the aforementioned judgments. Following the precedents, we allow the appeal in favour of the appellant.
6. With regard to cleaning activity (Point No. (iv), since the appellant has produced the certificate for the first time before this Tribunal, we are of the view that the same should be verified by the Original Authority. Therefore, we remand the matter to the original authority for verification of such certificate. If the same is in order, the refund shall be granted to the appellant.
7. With regard to Point No. (v), the appellant has not pressed for the refund on such ground. Thus, the appeal is dismissed as not pressed.
8. The appeal is disposed of in above terms.
(Operative portion of the order pronounced in the open court)
(R. K. Singh) (S. K. Mohanty)
Member(Technical) Member (Judicial)
Neha