Custom, Excise & Service Tax Tribunal
Cce Goa vs M/S Fomento (Karnataka) Mining Co. Pvt. ... on 25 April, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. ST/362/11 Mum
(Arising out of Order-in-Appeal No. GOA/CEX/GSK/51/11 dated 21.02.2011 passed by the Commissioner of Central Excise & Service Tax (Appeals), Goa)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
CCE Goa
:
Appellant
Versus
M/s Fomento (Karnataka) Mining Co. Pvt. Ltd.
Respondent
Appearance Shri Rakesh Goyal, Addl. Commissioner (A.R.) For appellants Shri C.S. Biradar, Advocate For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 25.04.2014 Date of Decision : .
ORDER NO.
Per Ashok Jindal Revenue is in appeal against the impugned order for sanctioning the refund claim of the respondent of unutilized CENVAT Credit lying in their CENVAT Credit account.
2. Brief facts of the case are that the respondent filed a claim for refund of service tax under Notification No.17/2009 dated 07.07.2009 for refund of service tax paid on input service received and used in respect of export of goods during the period from August 2009 to September 2009 on 21.07.2010. The adjudicating authority rejected the refund claim on the ground that the said Notification provides refund of duty paid on service tax towards certain services used for export of goods pertaining to Section 65 (105) of the Finance Act,1994. The said order was challenged before the Commissioner (Appeals) who set aside the order of the adjudicating authority and sanctioned the refund claim of input service provided by transport of export goods through national waterway, inland water and coastal shipping. Aggrieved by the said order, the Revenue is before me.
3. Heard both sides.
4. The learned A.R. appeared for the Revenue submitted that the services of transport of export goods through national waterway, inland water and coastal shipping were brought down for consideration of refund claim through Notification No. 30/09 dated 30.09.2009 and the period of export of the goods in the impugned goods is August and September 2009. As the said service did not qualify for the claim of refund of service tax as per Notification 17/2009 therefore the respondents are not entitled for the refund of service provided by transport of export goods through national waterway / inland water. In these circumstances, the impugned order is required to be set aside.
5. On the other hand, the learned Counsel appearing for the respondent submits that the Notification 40/2009 is only to add more service of transport of export goods through national waterways, inland water and coastal shipping as per Notification No.17/2009-S.T. The refund claim cannot be denied merely because they relate to exports made prior to date of Notification. To support his contention he relied on the decision in the case of WNS Global Services (P) Ltd. v. CCE 2008 (10) STR 273 which has been affirmed by the Honble Mumbai High Court in 2011 (22) STR 609 (Bom).
6. Considered the submissions made by both the sides.
7. In this case, the only ground taken by the learned A.R. for rejection of the refund claim is that Notification 40/2009-S.T. dated 30.09.2009 brought the service of transport of export goods through national waterways, inland water and coastal shipping were made eligible for refund of claim of unutilized CENVAT Credit w.e.f 30.09.2009. It is not in dispute that the respondent has availed the said transport service and paid service tax thereon in the course of export of goods. Merely on the ground that the goods were exported prior to introduction of Notification 40/09-ST dated 30.09.2009 cannot be denied in the light of the decision of WNS Global Services (P) Ltd. (supra) wherein it was held that refund of unutilized service tax credit not allowed to provider of output services, neither any conditions, safeguards and limitations provided in respect of provider of output services during relevant period nor any procedure was prescribed for claiming refund of unutilized CENVAT Credit availed on input services used in export of output services. In this case it is not in dispute that the services of transport of goods have been availed by the respondent in export of the goods and the service tax was paid thereon. Further the input service credit is lying in the CENVAT Credit account unutilized. Therefore, they are entitled for refund claim. In these circumstances, I do not find any infirmity with the impugned order and the same is upheld. The appeal filed by the Revenue is dismissed.
(Order pronounced in Court on ..) (Ashok Jindal) Member (Judicial) nsk ??
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