Custom, Excise & Service Tax Tribunal
M/S.Kei Industries Ltd vs Cce, Jaipur-I on 1 November, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-SM
COURT III
Service Tax Appeal No.ST/98/2011-ST [SM]
[Arising out of Order-in-Appeal No.364 (DKV) ST/JPR-I/2010 dated 18/21.10.2010 passed by the Commissioner (Appeals), Central Excise, Jaipur-I]
For approval and signature:
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
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.KEI Industries Ltd. Appellant
Vs.
CCE, Jaipur-I Respondent
Present for the Appellant : Shri.P.K. Mittal, Advocate Present for the Respondent: Shri.R.K. Mishra, A.R. Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) Date of Hearing/Decision: 01/11/2016 FINAL ORDER NO. __55716/2016___ PER: S.K. MOHANTY
This appeal is directed against the impugned order dated 18/21.10.2010 passed by the Commissioner of Customs and Central Excise (Appeals), Jaipur.
2. Brief facts of the case are that the appellant is engaged in the manufacture of PVC Insulated Wires and Cables, falling under Chapter 72 and 85 of the Schedule to Central Excise Tariff Act, 1985. During the disputed period, the appellant had filed the refund applications, claiming refund of Rs.1,91,860/- in respect of service tax paid on various taxable services, namely, clearing and forwarding charges, Ocean freight charges, outward freight charges, fumigation charges, bill of lading charges and CHA charges used for export of the final products. The refund application was filed in terms of Notification No.41/2007-ST dated 06.10.2007.
3. The Department denied the refund benefit on the ground that the taxable services used/utilized for exportation of goods are not falling within the scope and ambit of Port Service. With regard to fumigation charges, the refund claim has been rejected on the ground that the appellant had not produced the written agreement entered with the overseas buyer for providing such service.
4. Shri P.K. Mittal, ld. Advocate appearing for the appellant submits that various taxable services used within the port for exportation of the goods should be considered for refund benefit in terms of Notification dated 06.10.2007. To support such stand, the ld. Advocate has relied on the decision in the case of SRF Ltd. vs. CCE, Jaipur reported in 2015 (40) STR 980 (Tri.-Del.), Shivam Exports vs. CCE, Jaipur reported in 2016- TIOL- 376 CESTAT-Del., Suncity Art Exports and Other vs. CCE, Jaipur II reported in 2014 TIOL -2319 CESTAT-Del. and CCE, Ahmedabad vs. Dishman Pharma & Chemicals Ltd. reported in 2011 (21) S.T.R. 246 (Tri.-Ahmd.). He further submits that the appellant had entered into the agreement with the overseas buyer for providing the fumigation services in respect of the export cargo, which were not produced before the authorities below and can be produced before the Original Authorities, if the matter is remanded back to him.
5. Shri R.K. Mishra on the other hand, reiterates the findings recorded in the impugned order.
6. Heard the ld. Counsel for both sides and perused the records.
7. On perusal of the adjudication order, I find that the adjudicating authority has accepted the fact that the disputed taxable services were used for export of goods and payments made to the service providers. However, the refund benefit has been denied to the appellant on the ground that the services are not confirming to the definition of Port Service. I find from the decision cited by the ld. Advocate that irrespective of the taxable service, if the same are provided within the port for exportation of goods, the refund claim can be processed in terms of the Notification No.41/2007 dated 06.10.2007. Thus, refund claim denied by the authorities below on the disputed services namely, inland Haulage charges, Freight outward charges, BL charges and CHA charges is not in conformity with the provisions of the Notification dated 06.10.2007 and to that extent the impugned order is set aside and the appeal is allowed in favour of the appellant.
8. So far as fumigation charges are concerned, it is an admitted fact that the appellant had not produced the agreement entered into between him and its buyer, either before the original authority or before the first appellate authority. Since the ld. Advocate concedes that the agreement has been entered into and the same is available with the appellant, I am of the view that the matter should go back to the original authority for verification of the agreement entered into by the appellant with its overseas buyer. If the written agreement is produced by the appellant, the refund benefit should be extended by the original authorities.
9. The appeal is disposed of in above terms.
[Dictated and pronounced in the Open Court] (S.K. MOHANTY) MEMBER (JUDICIAL) Anita 0 4