Custom, Excise & Service Tax Tribunal
M/S Indoworth (India) Ltd vs Commissioner Of Central Excise, Nagpur on 28 June, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeals No. ST/91, 108, 109, 110, 266, 267, 268 & 269/10 (Arising out of Orders-in-Appeal No. SR/316/NGP/2009 dated 4.12.2009, SR/314/NGP/2009 dated 4.12.2009, SR/77-79/NGP/2010 dated 25.2.2010 passed by the Commissioner of Central Excise (Appeals), Nagpur). For approval and signature: Honble Shri S.K. Gaule, Member (Technical) ======================================================
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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Indoworth (India) Ltd. Appellants Vs. Commissioner of Central Excise, Nagpur Respondent Appearance: Shri Mayur Shroff Advocate for Appellant Shri V.K. Singh SDR for Respondent CORAM: SHRI S.K. GAULE, MEMBER (TECHNICAL) Date of Hearing: 28.06.2011 Date of Decision: 28.06.2011 ORDER NO. WZB/MUM/2011 Per: S.K. Gaule Heard both sides.
2. The appellants have filed these appeals against the Orders-in-Appeal No. SR/316/NGP/2009 dated 4.12.2009, SR/314/NGP/2009 dated 4.12.2009, SR/77-79/NGP/2010 dated 25.2.2010 whereby the Commissioner (Appeals) has upheld the lower adjudicating authoritys order rejecting the refund claim. Since a common issue is involved in all these appeals, they are taken up together for disposal.
3. Briefly stated facts of the case are that the appellants are engaged in the manufacture of various types of Textile Worsted Yarn & Poly Wool Worsted Yarn falling under Chapter 51 & 55 of Central Excise Tariff Act, 1985. They have exported the said products to various countries. The appellant filed applications for refund of Service Tax paid by them on various specified services used in relation to goods exported out of India in pursuance of Notification No. 41/2007-ST dated 6.10.2007. The lower adjudicating authority rejected the refund claim on the ground that in case of CHA services, the name figuring on shipping bill is different from the name of CHA who has paid the service Tax. In case of refund relating to Service Tax paid on Bill of lading, the refund claim has been rejected on the ground that service provider is registered under Business Auxiliary Services, whereas the benefit has been claimed under port services. The learned Commissioner (Appeals) upheld the order of the lower adjudicating authority. Hence, the appeal.
4. The contention of the appellant is that they have exported the goods and claimed the refund in terms of Notification No. 41/2007-ST. In case of refund of Service Tax paid on CHA services, the appellant relied upon this Tribunals decision in the case of Commissioner of Customs, Nagpur Vs. Sunflag Iron & Steel Co. Ltd. 2010 (20) STR 213 (Tri-Mum). He also placed reliance on clarification VII of Boards Circular No. 112/6/2009-ST dated 12.3.2009 in so far as refund of Service Tax paid on Port services alleged to have been registered under Business Auxiliary Services. The contention of the appellant is that the Notification provides exemption by way of refund from specified taxable services used for export of goods. Granting refund to exporters on taxable services that he received 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 learned Counsel also submitted that learned Commissioner (Appeals) in subsequent proceedings after relying upon the Tribunals decision in the case of Sunflag Iron & Steel (supra) has allowed the refund. So far as the refund of transport services is concerned, the appellant heavily relied upon the decision of the Tribunal in the case of Commissioner of Central Excise, Ahmedabad Vs. Ramdeo Food Products Pvt. Ltd. 2010 (19) STR 833 (Tri-Ahmd), wherein it was held that while collecting the service tax on the said services, the same stands considered as port services, therefore, the same cannot be held otherwise while granting the refund.
5. Learned JDR appearing for the department does not dispute that the Commissioner (Appeals) has allowed the refund in case of subsequent proceedings on relying upon Boards Circular and this Tribunals decision in the case of Sunflag Iron & Steel (supra). In the case of refund of Service Tax paid on CHA services and in case of refund of Service Tax paid port services, the learned JDR contended that they have registered as Business Auxiliary Services but they have claimed refund of Service Tax paid on port services.
6. I have carefully considered the submissions made by both sides and perused the records. The appellants claimed refund of Service Tax under Notification No. 41/07-ST dated 6.10.2007. The appellants have paid Service Tax on specified services used for export of goods. The goods have been exported and the Service Tax was paid on input services for which refund has been claimed. The above facts are not in dispute. I find that both the lower authorities have rejected the refund claim on the ground that in case of CHA services, the name figuring on shipping bill is different from the name of CHA who has paid the service Tax. In case of refund relating to Service Tax paid on Bill of lading, the refund claim has been rejected on the ground that service provider is registered under Business Auxiliary Services, whereas the benefit has been claimed under port services. Board Circular No. 112/6/2009-ST dated 12.3.2009 provided certain clarifications in the case of refund under Notification No. 41/07. Clarification VII is reproduced herein as under for convenience of reference: -
Sl. No. Issue Raised Clarification VII The 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 grounds that the taxable services that are not covered under the registration are not eligible for such refunds.
Notification No. 41/2007-ST 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 separately, independent of the process of refund.
From the above, it follows that granting refund to exporters on taxable services that he received 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.
7. The Tribunal in the case of Sunflag Iron & Steel (supra) on similar issue held that once Service Tax paid is not disputed the assessee is entitled to take refund of Service Tax paid by them in terms of Notification No. 41/2007. In the case of Ramdev Foods (supra), the Tribunal held that while collecting the service tax on the said services, the same stands considered as port services, therefore, the same cannot be held otherwise while granting the refund. The learned Counsel also brought to my notice that in so far as refund of service Tax on CHA is concerned in their own case for the subsequent period, the Commissioner (Appeals) has allowed the refund on such services.
8. In view of the aforesaid findings, the impugned orders are set aside and the appeals are allowed with consequential relief.
(Dictated and pronounced in Court) (S.K. Gaule) Member (Technical) Vks/ 1