Custom, Excise & Service Tax Tribunal
M/S. Gujarat Ambuja Export Limited vs Commissioner Of Customs & Central ... on 10 June, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. ST/89525/13 [Arising out of Order-in- Appeal No. NGP/EXCUS/ 000/APPL/784 /13-14 dtd. 27/8/2013 passed by the Commissioner(Appeals) Customs & Central Excise, Nagpur] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) =======================================================
1. Whether Press Reporters may be allowed to see : No
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 : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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M/s. Gujarat Ambuja Export Limited
:
Appellants
VS
Commissioner of Customs & Central Excise, Amravati
:
Respondent
Appearance
Shri. Vinay Jain. C. A. for the Appellants
Shri. S.V. Nair, Asstt. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 10/6/2015
Date of decision: 10/6/2015
ORDER NO.
Per : Ramesh Nair
This appeal is directed against Order-in-Appeal No. NGP/EXCUS/000/APPL/784/13-14 dtd. 27/8/2013 passed by the Commissioner (Appeals) Customs & Central Excise, Nagpur, wherein Ld. Commissioner (Appeals) upheld the order-in-original No. 157/REF/ST/MT/12-13 dated 11/1/2013 and rejected the appeal filed by the appellant.
2. The fact of the case is that the appellant is exporter of soya product such as Soyabeen De-Oiled Cake. They are receiving various services which said to have been used in the export of the said product. The appellant filed refund claim in respect of service tax paid on the services received for export of goods in terms of Notification No. 41/2012-ST dated 29/6/2012, subsequently appellant amended the refund claim and claimed it under Notification No. 52/2011-ST 13/12/2011. The adjudicating authority allowed the refund claim partly on certain services however refund in respect of Business Support Service, Clearing and Forwarding Service, Bank and Financial Services were rejected by the adjudicating authority. Aggrieved by the said order the appellant filed appeal before the Commissioner(Appeals) who upheld the order in original and rejected the appeal of the appellant therefore the appellant is before me.
3. Shri. Vinay Jain Ld. C. A. for the appellant submits that three services on which the refund rejected are business support service, clearing and forwarding service, bank and financial services. It is his submission that as regard the business support service, it is service of goods handling, it is toward DOC handling charges for export. He submits that as per the nature of the service it is either clearing and forwarding or cargo handling service and both these services covered under the Notification No. 52/11 dated 13/12/2011 therefore refund should be allowed. As regard the clearing and forwarding service, he submits that original authority rejected the claim on the ground that services is of loading and unloading of export goods which is not clearing and forwarding service therefore the same is not admissible for refund. It is his submission that services were provided by clearing and forwarding service agent, it is service of clearing and forwarding which is covered under the Notification No. 52/11 and the same should be allowed. Regarding the banking and financial services, he submits that Ld. Commissioner (Appeals) rejected the claim of this service stating that the said service do not cover under any entry of table in notification No. 52/11-ST. Ld Counsel submits that banking and financial service related to export of goods is clearly mentioned under Sr. NO. 12 under clause (2m) in the table appended to the Notification No. 52/11-ST, therefore contention of the original authority that services not covered under the said notification is not correct. He further submits that banking and financial service on which refund was claimed is related to collection of export proceeds, purchase of foreign exchange, which are squarely covered by the entry provided at Sr. No. 12 of the table of the Notification No. 52/11 ST, therefore they are entitled for the refund on banking and financial services. He further submits that they have initially filed refund claim under Notification No. 41/12-ST but after pointed out by the department they amended their claim under Notification No. 52/11-ST however the claim can be processed under earlier Notification No. 41/12 and in that Notification all three services are covered. On the query from the bench that how retrospective effect can be given to the Notification. 41/12 as the export was made during the period when Notification No. 52/11 was in force. In this regard he placed reliance on the judgment in the case of WNS Global Services (P) Ltd. Vs. CCE[2008(10) STR 273(Tri- Mum).
4. Shri. S.V. Nair, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that export has taken place prior to issuance of Notification No. 41/2012-ST therefore the refund of the Appellant is covered by earlier Notification No. 52/2011-ST therefore the Notification No. 41/2012-ST cannot be applied for the refund in the present case. He also submits that since the appellant themselves corrected their refund claim by giving effect to claim under Notification No. 52/2011, so their claim does not remain under Notification No. 41/2012, therefore judgment relied upon by the appellant is of no help to them. He submits that business support service is clearly not covered under Notification No. 52/2011-ST, therefore refund in respect of such services is not admissible. As regard the service of clearing and forwarding, from the invoices, it is not coming out whether services is of clearing and forwarding or otherwise, therefore lower authority correctly held that it is not covered under the Notification, hence the refund is not admissible. As regard the banking and financial services he fairly concedes that entry of banking and financial service covered under the clause (zm) of Sr. 12 of the Notification.
5. I have carefully considered the submissions made by both sides and perused the record.
6. I find that export against which the refund was sought for during the period when the Notification No. 52/2011-ST was inforce, though the refund claim was filed after supersession of that notification. I also observed that appellant have subsequently made refund claim under Notification 52/2011-ST instead of Notification 41/201-ST. Therefore, I am of the view that refund is clearly covered by Notification No. 52/2011-ST and not by 41/2012-ST. On this fact the judgment in the case of WNS Global Services (P) Ltd.(supra) relied upon by the Ld. Counsel is not applicable to the present case. In view of the above position the services of business support services is not covered under Notification No. 52/2011-ST, therefore refund on business support service is not admissible. However as per the submission of the Ld. Counsel that service description reveals that it is a service of DOC Handing correctly classified clearing and forwarding services or cargo handling services and both the services are covered under Notification No. 52/2011, therefore refund is admissible. I find that from the invoices it cannot be ascertained whether this services are of business support services or otherwise. It is also to be seen that under which head service provider discharged service tax. If service tax was paid by the service provider under the head of clearing and forwarding services or cargo handling service or in any other service then appellant is entitled for the refund. But if it is found that service tax paid under the business support service irrespective of the nature of the service the appellants is not entitled for the refund. As regard the clearing and forwarding services from the bill of the service provider it can be seen that the bill was raised by the clearing and forwarding agent, therefore apparently the service for which the bill is raised is for clearing and forwarding service. In this bill classification of services is not provided therefore it is not known under which head service tax is paid. These facts need to be verified on the basis of payment details of the service tax made by service provider. As regard banking and financial services, from the bill of service provider i.e. Union Bank of India of the service which related to collection of export proceed and purchase of foreign exchange etc which are clearly covered under Sr. 12 of the table given under Notification No. 52/2011-ST therefore Ld. Commissioner (Appeals) is finding that it is not specified in the Notification is absolutely wrong and without application of mind, refund of banking and financial services therefore allowed. In my above discussion, I am of the view that as regard business support service and clearing and forwarding service the matter needs to be remanded to the original authority, to verify under which classification head service provider has discharged the service tax liability in respect of services covered under the relevant invoices, for which appellant shall provide the service tax payment particulars of the service provider to the adjudicating authority. On verification if it is found that classification of service under the head service tax was paid and which are specified under Notification such as clearing and forwarding service, cargo handling service and any other service, refund shall be allowed. Needless to say that appellant shall be given sufficient opportunity of personal hearing and for making additional submission, if any. The appeal is remanded to the adjudicating authority in the above terms.
(Dictated in court) Ramesh Nair Member (Judicial) sk 7