Custom, Excise & Service Tax Tribunal
Shri O P Agarwal, Ca, For The vs Shri S Nunthuk, Ar For The on 9 September, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Date of Hearing : 09.09.2016
S.No
Appeal No.
Appellant
Respondent
Arising out of Order No. 1 ST/1210/2010 BHATI & CO. (RAJ.) Vs C.C.E. JAIPUR II CCE, Jaipur II OIA 140-KKG-ST-JPR-II-2010 dt. 04/06/2010 2 ST/1211/2010 SUNITA HYDRO COLLOIDS PVT. LTD . CCE, Jaipur II OIA 126-KKG-ST-JPR-II-2010 2011 dt. 02/06/2010 3 ST/1245/2010 JOHARI DIGITAL HEALTHCARE LTD.
CCE, Jaipur II OIA 166-KKG-ST-JPR-II-2010 dt.
03/06/2010 4 ST/1283/2010 BHARAT ARTS & CRAFTS, CCE, Jaipur II OIA 201-CB-ST-JPR-II-2010 dt. 5/07/2010 5 ST/1311/2010 SHRI RAM INDUSTRIES(RAJ) CCE, Jaipur II OIA 197-CB-ST-JPR-II-2010 dt. 5/07/2010 6 ST/1339/2010 LALJI HANDICRAFTS CCE, Jaipur II OIA 221-CB-ST-JPR-II-2010 dt.
12/07/2010 7 ST/1344/2010 SUN ART EXPORTERS CCE, Jaipur II OIA 191-CB-ST-JPR-II-2010 dt. 5/07/2010 For approval and signature:
Hon'ble Ms. Archana Wadhwa, 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? No 2 Whether it should 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 Departmental authorities?
Yes Appearance:
Shri O P Agarwal, CA, for the Appellants Shri S Nunthuk, AR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Date of Hearing/ Decision: 09.09. 2016 ORDER NO . FO/ 53574-53580 /2016-(SM) Per Ms. Archana Wadhwa :
After hearing both sides, I find that the common issues are involved in all these appeals. As such, all appeals are disposed of by common order.
2. After hearing both sides, I find that appellants are exporter of the goods and are entitled to refund of service tax paid on various services used by them for the export of goods, in terms of notification No. 41/07-ST dated 6.10.07. The refund claims filed by the appellants in respect of terminal handling charges, Bill of lading charges, origin haulage charges, repo charges as also CHA services stand rejected by the lower authorities on the ground that same cannot be considered as port services.
3. Both sides agree that the issue stand decided by the Tribunal in number of decisions. Reference can be made to following case laws:
1. SRF Ltd. vs. CCE, Jaipur I [2015 (40) STR 980 (Tri-Del)];
2. M/s. Shivam Exports, M/s. Mecshot Blasting Equipment Pvt. Ltd. vs. CCE, Jaipur [2016-TIOL-376-CESTAT-DEL]
3. M/s. Suncity Art Exporters and others [2014-TIOL-2319-CESTAT-DEL)]
4. Vippy Industries Ltd. vs. CCE Indore [2013 (30) STR 238 (Tri-Del)]
5. Faizan Shoes Pvt Ltd vs CST, Chennai [2014 (34) STR 205 (Tri-Chennai)]
6. CCE, Surat vs. ABG Shipyard Ltd.
[2011 (24) STR 620 (Tri-Ahmd)]
4. As such, I find that on this ground, the disputed issue is settled in favour of the assessee.
5. Apart from the above, the lower authorities, in some of the cases, have also observed that proper invoices were not submitted and it is only the debit notes on the basis of which, the refund of Service Tax is being claimed.
I find that the said issue was also the subject matter of earlier decisions and specific reference can be made to Tribunal decision in the case of M/s. Mecshot Blasting Equipment Pvt. Ltd. (supra). Further, the Revenues allegation that nothing was produced on record to show the proof of payment of service tax by the service provider, cannot be appreciated inasmuch as it is not the obligation of the service recipient to deposit the service tax and having paid to the service provider and it is for the service provider to show the proof of payment of service tax. No such requirement stands specified in the notification in question and Board has also clarified that it is sufficient to show that the amount of service tax stand paid to the service provider. As such, I find no merits in above objection of the Revenue.
6. In the case of M/s. Johari Digital Health Care Ltd., apart from the common issue involved, the refund claim stand denied on the claim by the assessee on the air services by observing that the same do not get covered under the notification. Explaining Shri O P Agarwal, learned Advocate submits that the same were actually not air services but courier services. The said services obtained by them were courier services, which at further intimation, transported through air. Courier services being specified as one of the service inputs is admissible to the assessee. The fact whether the service tax was relatable to courier service or not is required to be examined and for the purpose I remand the matter in respect of M/s. Johari Digital Health Care Ltd. on the said issue only for examining the aspect.
In the same case, a part of the refund stand denied on cleaning activities, which the appellant is not pressing, the same is accordingly confirmed.
7. In view of the above, all the appeals are allowed with consequential relief except in the case of M/s. Johari Digital Health Care Ltd. which is remanded back on a particular issue.
(dictated and pronounced in the open court )
( Archana Wadhwa ) Member(Judicial)
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