Custom, Excise & Service Tax Tribunal
M/S Hrmm Agro Overseas Pvt. Ltd vs Cce, Meerut I on 10 October, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV Service Tax Appeal No. 58113 of 2013 (SM) [Arising out of the Order-in-Appeal No. 10-ST/MRT-I/2013 dated 26/02/2013 passed by The Commissioner (Appeals), Central Excise & Service Tax, Meerut.] For Approval and signature : Honble Shri Rakesh Kumar, Member (Technical) 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 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 HRMM Agro Overseas Pvt. Ltd. Appellant Versus CCE, Meerut I Respondent
Appearance Shri Alok Arora, Advocate for the appellant.
Shri R. Puri, Authorized Representative (DR) - for the Respondent.
CORAM : Honble Shri Rakesh Kumar, Member (Technical) DATE OF HEARING : 10/10/2013.
Final Order No. 58091/2013 Dated : 10/10/2013 Per. Rakesh Kumar :-
The appellant are exporters of rice and sugar. For these exports they have availed the services provided by the ports, CHAs, storage and warehousing service and banking services (for collection of export proceeds). They filed a refund claim for service tax paid on the above-mentioned services used in connection with exports, in terms of Notification No. 17/2009-ST. The Jurisdictional Assistant Commissioner rejected claim of Rs. 8,890/- in respect of CHA service, refund claim of Rs. 1,33,351/- in respect of port service, refund claim of Rs. 78,268/- in respect of warehousing service and refund claim of Rs. 92,125/- in respect of banking services. The refund claim of Rs. 8,890/- in respect of CHA service was rejected on the ground of time bar, as according to the department the application for refund had been received on 26/6/12 beyond the limitation period of one year from the date of net export order. The refund claim of Rs. 1,33,351/- in respect of port service was rejected on the ground that this amount represents the service tax paid on the water front royalty charges which have no nexus with the port service. The refund claim of Rs. 78,268/- in respect of godown rent for storage of the goods within port area was rejected on the ground that the invoice of the service provider cannot be linked with the shipping bill. On the same ground the refund claim of Rs. 92,125/- and in respect of banking services was rejected.
1.1 On appeals being filed to Commissioner (Appeals), the above order of the Assistant Commissioner was upheld vide order-in-appeal dated 03/3/13 against which this appeal has been filed.
2. Heard both the sides.
3. Shri Alok Arora, Advocate, the learned Counsel for the appellant, pleaded that so far as the refund claim of Rs. 8,890/- in respect of CHA service is concerned, the limitation period must be counted from the bill of leading date, as this date should be treated as date of export and hence the claim would not be time barred, that as regards the refund claim of Rs. 1,33,351/- in respect of port services, this amount has been rejected by reopening the assessment at the end of the service provider which is not permissible, that when the port service provider M/s Adani have paid service tax on certain value which includes the water front royalty charges and handling charges etc. the refund of service tax on this amount should be allowed and the Central Excise authority considering the refund claim under Notification No. 17/2009-ST cannot reopen the assessment of service tax payable by M/s Adani, that as regards the refund of service tax of Rs. 78,268/- on the warehousing charges, the service of warehousing had been availed by the CHA on behalf of the appellant and CHA in his bills raised to the appellant had charged the amount of warehousing charges enclosing the invoices of the warehousing service provider, that while the invoices of the warehousing service provider do not mention the shipping bill, the bill issued by the CHA, mention the shipping bill numbers and, therefore, it is wrong to say that the warehousing charges cannot be linked to shipping bills under which the goods had been exports, that as regards the refund claim of Rs. 91,125/- of the service tax paid on the bank commission charges, though the certificate issued by the bank does not mention shipping bills, it does mention the export invoice number and each of the export invoice number can be linked to the shipping bill as the shipping bills mention the export invoice number and, therefore, the Commissioner (Appeals)s finding that the certificate given by the bank cannot be related to the export shipping bills is not correct and that in view of this, the Commissioner (Appeals)s order is not correct.
4. Shri R. Puri, the learned Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals).
5. I have considered the submissions from both the sides and perused the records.
6. As regards the refund claim of Rs. 8,890/- in respect of CHA service, the same had been rejected on the ground of time bar. The refund application had been filed on 26/6/12 but if the limitation period of one year is counted from the date of let export order, which is the relevant date in terms of Clause 2 (f) of the Notification, the refund claims for this amount has obviously been filed after the expiry of one year and, therefore, the rejection of the refund claim of Rs. 8,890/- is upheld.
7. As regards the rejection of refund claim of Rs. 1,33,351/- in respect of port services, the only ground for rejection is that this amount represents the service tax paid by M/s Adani export on royalty charges and there is no relationship between the port services and royalty charges. On going through the records, I find that the invoices issued by Adani Port show the payment of service tax on the amounts called water front royalty and handling charges under port services. When the department has accepted service tax on these amounts under port services, at the time of considering refund of the service tax paid on port services to the service recipient, the Jurisdictional Central Excise authorities cannot seek to reopen the assessment of service tax at the end of the service provider. Therefore, the impugned order rejecting the refund claim of Rs. 1,33,351/- of service tax on the port services on the ground that there is no relationship between the port service and royalty charges, is not correct.
8. As regards the refund of service tax of Rs. 78,268/- on godown rent, this has been rejected on the ground that the godown service providers bills do not have the requisite information such as shipping bill so as to establish that the bills are in respect of the goods exported by the appellant. On going through the records, it is found that the appellant had engaged the CHA M/s C. Jiwaran Joshi & Sons and it is the CHA who had availed the services from the storage and warehousing service provider. Though the invoices of the storage and warehousing service provider do not mention the shipping bill number, the storage and warehousing charges has been charged by the CHA from the appellant and the CHA in the invoices issued by him to the appellant has given complete details of the shipping bill. Therefore, it is wrong to say that the invoices issued by the storage service provider cannot be linked to the shipping bills under which the goods had been exported. Therefore, rejection of the refund claim of Rs. 78,268/- is not correct.
9. As regards the rejection of refund claim of Rs. 92,125/- on bank commission charges, the same has been rejected on the ground that the bank realisation certificate does not bear the shipping bills numbers or bill of lading numbers. On going through the records, it is seen that while the bank realisation certificate does not mention the shipping bill number, it does mention the invoice number and date and the shipping bills filed by the appellant do mention the export invoice number. Thus, the bank realisation certificate can be linked to the shipping bills under which the exports had been made. Therefore, rejection of refund claim of Rs. 92,125/- on the ground mention in the impugned order is not correct.
10. In view of the above discussion, the impugned order is upheld only to the extent of rejection of refund claim of Rs. 8,890/- on CHA service and the remaining portion of the impugned order rejecting the refund claim of Rs. 1,33,351/-, Rs. 78,268/- and Rs. 92,125/- is set aside. The appeal stands disposed of, as above.
(Pronounced in the open court.) (Rakesh Kumar) Member (Technical) PK ??
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