Custom, Excise & Service Tax Tribunal
M/S. Rajasthan Textile Mills vs Cce, Jaipur on 1 August, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
BENCH-DB
Date of Hearing: 01.08.2014
Service Tax Appeal No.ST/492/2009 Cu[DB]
[Arising out of Order-in-Appeal No. 62(DK) CE/JPR-I/2009 dated 25.03.2009 passed by the Commissioner (Appeals), Central Excise, Jaipur-I]
For Approval & Signature :
Honble Mr. Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would 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 Department Authorities?
M/s. Rajasthan Textile Mills Appellant
Vs.
CCE, Jaipur Respondent
Present for the Appellant : Ms. Sukriti Das, Advocate Present for the Respondent : Shri Govind Dixit & R. Puri, DR FINAL ORDER NO. 53196/2014 PER: R.K. Singh The appellants have filed this appeal against Order-in-appeal No. 62(DK) CE/JPR-I/2009 dated 24.03.2009 which upheld the Order-in-Original No. 23/R/2008-09 dated 30.05.2008 in terms of which appellants refund claim of Rs. 2,37,136/- was rejected.
2. The facts, briefly stated, are as under:
The appellants filed the refund claim of Rs. 2,37,136 in respect of amount of service tax paid by them in relation to export of goods on the terminal handling charges and documentation & CHA charges in terms of Notification No. 41/2007-ST dated 06.10.2007 claiming that the service on which service tax was paid fell under the category of Port Service [Section 65 (105) (zn)]. The refund was rejected on the ground that the appellants had availed drawback in respect of goods exported by them and also the service tax in respect of which refund was sought was not paid under any of the services mentioned in Notification No. 41/2007-ST dated 06.10.2007.
3. The appellants while not disputing that they had claimed drawback on goods exported relating to which the refund claim was filed, contended that the said drawback cannot be related to the taxable services availed of at the port as the same were availed of beyond the factory gate. The appellants have also contended that whatever services are rendered in the port area are to be treated as port services. On these bases, the appellants contended that they are eligible for the impugned refund.
4. We have considered the appellants contentions and pursued Notification No. 41/2007-ST. One of the conditions prescribed in the said Notification is that the said goods have been exported without availing drawback of service tax paid on the specified services under Customs, Central Excise Duties and Service Tax Drawback Rules 1995. It is seen that the said condition is unambiguously worded, with only one interpretation that in case the appellants had availed of drawback of service tax paid under the aforesaid Drawback Rules they become in-eligible for the benefit under Notification No. 41/2007-ST and the appellants have conceded that they have availed of such drawback.
5. It is further seen that out of service tax of Rs. 2.37.136/- for which refund was sought, an amount of Rs. 2,24,872/- pertains to service tax paid on terminal handling charges, documentation charges and CHA charges which are claimed to be covered under port services. It is seen that Notification No. 41/2007-ST provides for refund of service tax paid on services specified in the schedule thereto. The onus is thus squarely on the appellants to show that the service tax they are seeking refund was paid on services which are specified in the said schedule. The appellants have not given any evidence to the effect that the service tax the refund of which was claimed was actually paid under port service. On the other hand as per the documents/ CHA invoices submitted by the appellants it is seen that the amount of Rs. 2,24,872/- out of the total amount of refund sought was actually paid by their CHA who was registered under registration No. MIV/ST/CHA/161/2004 for providing CHA services. Custom House Agent service is a taxable service under Section 65 (105) (h) read with Section 65(105) (35) of the Finance Act 1994 and this services is not included in the schedule to Notification No. 41/2007-ST. Obviously, therefore, the service tax paid by their CHA for providing the CHA service can not be treated as service tax paid under Port Service and therefore can not be refunded under Notification No. 41/2007-ST.
6. The appellants referred to the CESTAT Larger Bench decision in the case Western Agencies Pvt. Ltd. Vs. CCE Chennai 2011(22) STR 305 (Tri.-LB) in an attempt to support to their case. We have perused the said judgment. That judgment deals with the issue of classification of certain services under port service. In the present case, the CHA service is a distinct service and the service tax is paid by their CHA. Thus there is no classification ambiguity in the present case. So, the said CESTAT judgment does not come to the appellants rescue at all.
8. In view of the forging, we do not find any merit in the appellants appeal and therefore reject the same.
[Dictated & Pronounced in the open Court].
(Justice G. Raghuram) President (R.K. Singh) Technical Member Neha 4