Custom, Excise & Service Tax Tribunal
M/S Khatau Narbheram & Company vs Commr. Of Central Excise, Customs & ... on 17 February, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Service Tax Appeal No.214/10
Arising out of O/A No.11/ST/B-II/2010 dated 10.3.2010 passed by Commissioner of Central Excise (Appeals), Customs & Service Tax, BBSR.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s Khatau Narbheram & Company
APPELLANT(S)
VERSUS
Commr. of Central Excise, Customs & Service Tax, BBSR II
RESPONDENT (S)
APPEARANCE Shri Siladitya Sarkar, C.A. for the Applicant (s) Shri S.Chakraborty, Asstt. Commr. (A.R.) for the Department CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING : 17. 02. 2012 DATE OF PRONOUNCEMENT : 02.03.2012 ORDER NO..
Per Dr. D. M. Misra :
The present appeal is filed by the appellant against the Order-in-Appeal No.11/ST/B-II/2010 dated 10.3.2010 passed by Commissioner of Central Excise (Appeals), Customs & Service Tax, BBSR.
2. The facts of the case in brief are that the appellant is an exporter of iron ore fines and had filed refund claim of Service Tax of Rs.6,38,019/- paid during the period October, 2008 to December, 2008 for an amount of Rs.6,38,019/-. The said refund claim was filed on account of services used for exported goods as per Notification No.41/2007-ST dated 6.10.2007 as amended. The lower adjudicating authority has allowed the refund claim of Rs.1,84,687/- on port services. However, he has rejected the refund claim of Rs.4,53,332/- on GTA services on two grounds. Firsrly, cannot be regarded as a place of removal and secondly, the export invoices relating to export of goods are not mentioned in the lorry receipt and the shipping bill Nos. were not mentioned as required under Notification 14/07-ST dated 6.10.07 as amended by Notification 3/2008-ST dated 19.2.2008.
3. The ld.Commissioner (Appeals) in his order disagreed with the reasoning that the export effected directly from the mines to the port cannot be considered to come within the definition of place of removal. However, he has upheld the reasoning of the lower adjudicating authority that the condition prescribed at Sl.No.(iii) inserted in Notification No.41/2007-ST as amended, has not been satisfied as the details of the exporters invoices relating to export of goods were not specifically mentioned in the lorry receipt and in the correspondence of shipping bills. Hence the present appeal.
4. The ld.C.A, appearing for the appellant has submitted that there is no dispute of the fact that the goods in question were exported from Paradeep Port and also there is no dispute of the fact that GTA service has been received by them on which service tax has been paid. He has submitted that the details of export were mentioned in the shipping bills. The details of invoices could not be mentioned in the lorry receipt. He has contended that this is not substantive condition for availing the benefit under Notification No.41/2007-ST dated 6.10.2007 as amended. In support of his contention, he has referred to the ratio of the decisions of the Honble Supreme Court in the case of Commr. of Central Excise, New Delhi Vs. Hari Chand Shri Gopal 2010 (260) ELT 3 (SC) and Mangalore Chemicals & Fertilizers Ltd. Vs. Deputy Commissioner 1991 (55) ELT 437 (SC), Union of India Vs. Wood Papers Ltd. 1990 (47) ELT 500 (SC). He has also submitted that all the particulars regarding export of goods including the invoices are available with them and they can satisfy and co-relate the lorry receipt with the invoices so as to satisfy the Department that the refund of service tax claimed pertains to GTA services used for the export of goods. He has referred to the judgement of the Tribunal in the West Zonal Bench, Ahmedabad in the case of M.R.Organization Vs. Commissioner of Central Excise, Ahmedabad 2010 (18) STR 209 (Tri.-Ahmd.) wherein on a similar issue interpreting the Notification No. 41/2007-ST dated 6.10.2007 as amended, the Tribunal has allowed the benefit of refund to the exporter in that case.
5. Per contra, the ld.A.R. appearing for the Department has submitted that the condition laid down under Notification is mandatory in nature and before the eligibility to avail the benefit under the said Notification, the claimant ought to satisfy that all the conditions laid down under the said Notification has been complied with. In support of his submissions, he has referred to the judgments of the Honble Supreme Court in the case of Commr. of Central Excise, Chandigarh I Vs. Mahaan Dairies 2004 (166) ELT 23 (SC) & Motiram Tolaram Vs. Union of India 1999 (112) ELT 749 (SC).
6. Heard both sides and perused the case records. The present refund claim relates to GTA service used by the appellant in relation to export of goods. It refers to the objective through service, should not be exported. Keeping in view the same, the service tax refund was allowed to the exporter when service tax has been paid relating to services used in the export of goods. In the present case, there is no dispute about the export of the said goods by the appellant nor there is any dispute that GTA services were used in the export of the said goods. The only dispute is that the necessary invoice nos. were not mentioned in the lorry receipt as also in he shipping bills. Further, during the course of hearing, the ld. Advocate has submitted that the details of export invoices are reflected in the shipping bills. However, they are not in a position to establish the link between the lorry receipt and the respective invoices under which the goods were exported. I find that on similar issue, the Tribunal in the case of M.R.Organization (cited supra) after interpreting the same Notification has recorded as under :
3.?I have considered the submissions made by both the sides. In this case there is no dispute that the goods have been exported. There is also no dispute that courier service has been availed. The only objection Revenue has taken is that the invoices did not contain the necessary details and same have been given subsequently. No doubt the requirements, the receipt issued by the courier agency should contain are specified. However, there is no bar to provide these details separately in case the original receipt did not contain these details. In such a case Revenue would be free to insist on verification and refund can be granted only after verification. As regards the evidence to link the use of courier service, it is not essential that the invoice should contain the linkage. The exporter can produce such evidence later. Therefore, the rejection of refund claim on these grounds is not correct. Accordingly, the matter is remanded to the Original Adjudicating Authority who will be free to verify the correctness of the details submitted by the appellants and also verify whether there is a proper linkage or not and consider the refund claim afresh. Accordingly, the matter is remanded back to the Original Adjudicating Authority to decide the refund claim in terms of the above order. I find that the circumstances in the present case are more or less similar to the aforesaid case. In the circumstances, I am of the opinion that the matter be remitted to the original authority for verification of the correctness of the claim of use of GTA service by establishing a link between lorry receipt, vis-`-vis export invoices and also the shipping bills and accordingly, decision on the eligibility of refund claim on the said GTA services be considered afresh. Accordingly, the matter is remanded to the original adjudicating authority for denovo adjudication on the above terms. Appeal is thus allowed by way of remand.
(Pronounced in the open Court on2/3/2012) Sd/ ( DR. D. M. MISRA ) JUDICIAL MEMBER mm 2 S.Tax Appeal No.214/10