Custom, Excise & Service Tax Tribunal
Rahman Industries Ltd vs C.C.E. & S.T., Kanpur on 19 September, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH: ALLAHABAD
SINGLE MEMBER BENCH
Appeal No. ST/56446/2013(SM)
Dated of Hearing/decision: 19/9/2016
[Arising out of Order-in-Appeal No. 313-ST/APPL/KNP/2012 dated 13.12.2012 passed by Commissioner (Appeals), Central Excise, Customs & Service Tax, Kanpur]
For approval and signature:
Honble Shri Anil Choudhary, Judicial Member
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Rahman Industries Ltd. Appellant
Vs.
C.C.E. & S.T., Kanpur Respondent
Appearance:
Present for the Appellant: Shri Vishwanath Shukla, Advocate Present for the Respondent: Shri Pawan Kumar Singh, Superintendent, AR Coram: Honble Shri Anil Choudhary, Member (Judicial) Final Order No.70917/2016 Per: Anil Choudhary The issue in this appeal filed by the appellant - manufacturer and exporter of shoe uppers and leather shoes is that whether the Commissioner (Appeals) is correct in refusing refund of input service availed by the appellant and not utilised due to export, under provisions of Notification number 17/2009ST on the ground that the service providers have mentioned improper service head/classification, instead of the correct classification etc..
2. The brief facts are that the appellant preferred refund claim for the period January 2011 to March 2011 for Rs. 3,70,720/- but the same was rejected vide Order-in-Original dated 19/6/12. Being aggrieved the appellant preferred appeal before ld. Commissioner (Appeals) who have been pleased to allow part of the claim and thereafter as per the direction, the Adjudicating Authority have calculated the refund allowable at Rs.51,395/-. Thus the Commissioner (Appeals) have rejected the balance refund of Rs.3,19,325/- and being aggrieved the appellant is in appeal before this Tribunal.
3. The ld. Counsel for the appellant urges that so far the service tax paid on the bill of the CHA, the ld. Commissioner (Appeals) allowing in part observed where only CHA service is received, refund is allowable but in respect of charges in the same invoice like bill of lading charges, documentation charges received under BAS category, was not allowed also terminal handling charges (THC) was also not allowed shown under BAS. Similarly in the case of invoice for transportation of loaded containers (factory stuffed) to the ICD have also been allowed, observing handling and freight charges were not allowable and only service tax on transportation expenses were allowed. Similarly the invoices for C&F charges and THC charges were also not allowed observing that these show B/L charges, documentation charges, agency charges, customs clearing charges, administrative fee etc. The ld. Counsel further urges that CBEC vide the Circulars Number 112/6/2009ST have clarified that where service provider providing services to the exporter provides various services, but he has registration of only one service, the refund is being denied on the ground that the taxable services that are not covered under registration, are not eligible. By way of clarification the board has said that Notification No. 41/2007ST or its successor Notification No. 17/2009ST provides exemption by way of refund from specified taxable services used for export of goods. Granting refund to exporters on taxable services that he receives and uses for export, do not require verification of registration certificate of the supplier of service. Therefore, refund should be granted in such cases, if otherwise in order. The procedural violations by the service provider need to be dealt with separately, independent of the process of refund. The ld. Counsel further urges that following the said Circular, co-ordinate Bench of this Tribunal in the case of Sopariwala Exports versus Commissioner of Service Tax [2015 (39) S.T.R. 884] have allowed refund for Terminal Handling Service, C&F service, CHA service, GTA service etc. and accordingly the facts being squarely covered, the appeal may be allowed with consequential benefits.
4. The ld. A.R. for revenue relies on the impugned orders
5. Having considered the rival contentions I find that refund have been allowed in part only on procedural grounds and/ or some classification error in the invoice raised by the service provider. On perusal of documents produced in the course of hearing reveals that all the documents in question bear shipping bill number, bill of lading number, invoice number etc. and there is no iota of doubt that the appellant have received the services in the course of export of their products. Accordingly I allow the appeal and direct the Adjudicating Authority to grant the balance amount of refund Rs. 3,19,325/- within a period of 45 (Forty five )days from the date of receipt of a copy of this order along with interest as per rules. The impugned order is set aside to the extent it have rejected the claim of refund.
(Dictated and pronounced in the open Court) (ANIL CHOUDHARY) MEMBER (JUDICIAL) (K. Gupta) Appeal No. E/56446/2013(SM) 1