Custom, Excise & Service Tax Tribunal
Garima Global Pvt. Ltd vs Commissioner Of Service Tax, Mumbai on 18 June, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. ST/87445/14 [Arising out of Order-in-Appeal No.488/PD/2014 dated 6.3.2014 passed by the Commissioner of Central Excise & Service Tax (Appeals-IV), Mumbai] For approval and signature: Honble Mr. Ramesh Nair, 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 : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
=======================================================
Garima Global Pvt. Ltd.
:
Appellants
VS
Commissioner of Service Tax, Mumbai
:
Respondent
Appearance
Shri. Kantilal P. Jain, Advocate for the Appellants
Shri. S.R. Nair, Examiner (A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 18/6/2015
Date of decision: 18/6/2015
ORDER NO.
Per : Ramesh Nair
This appeal is directed against the Order-in-Appeal No.488/PD/2014 dated 6.3.2014 passed by the Commissioner of Central Excise & Service Tax (Appeals-IV), Mumbai wherein the Ld. Commissioner (Appeals) allowed the appeal in respect of refund on Clearing & Forwarding Agent service and for the remaining services, the Original order rejecting the refund was upheld.
2. The facts of the case is that the Appellant applied for refund claim of Rs. 67,808/- on 24.10.2009 under Notification No.41/2007-ST dated 06.10.2007 in respect of service tax paid on various input services said to have been used in the output services which have been exported during the quarter April, 2009 to June, 2009. A show cause notice dated 23.02.2010 was issued to the Appellant raising following issues:
(i) No evidence such as ST3 Returns has been submitted to show that the credits of such input services have not been availed/utilized.
(ii) No evidence is produced to show that assessee being a private limited company have paid transport charges used the specified services.
(iii) Copies of agreement entered into with the overseas client evidencing that order is placed by a client located outside India are not produced.
(iv) Assessee have claimed refund on Courier Service. The receipt issued by the courier agency does not specify the importer-exporter (IEC) code number of the exporter, export invoice number, nature of courier etc. as envisaged in the notification.
(v) The transport bills submitted by the assessee show that transporter have not charged service tax in many bills and also there is mention of service tax assessee code number of service provider.
The show cause notice came to be adjudicated wherein Dy. Commissioner, Service Tax, Division-IV, Mumbai rejected the refund claim of Rs. 67,808/- vide Order-in-Original dated 29/7/2010. Being aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) who allowed the refund claim in respect of clearing and forwarding agent. However, for remaining services the rejection of refund claim was upheld, therefore appellant is before me.
3. Shri Kantilal P. Jain, Ld. Counsel for the appellant submits that the refund claim was rejected and upheld on the ground which was not raised in the show cause notice therefore entire proceedings such as adjudication as well as first appellate authority proceedings were carried out beyond the scope of show cause notice. Therefore the rejection of claim is not tenable only on this ground itself. He further submits that as regard the refund claim of Rs. 3,984/- the same is towards agency charges of clearing and forwarding agent. He submits that in the refund claim, appellant inadvertently mentioned classification wrongly under Section 65(105) (zzl) which is for technical inspection and testing charges. It is his submission that agency charges was billed by clearing and forwarding agent with their agency charges, therefore it cannot be said that merely because the appellant claimed refund in respect of agency charges classified service under the wrong head, therefore the service is of technical testing and inspection charges. He submits that refund in respect of clearing and forwarding agent service has already been allowed by the Ld. Commissioner (Appeals) therefore on the same line the refund of agency charges being service of clearing and forwarding agent should be allowed. As regard the services of bill of lading charges and terminal handing charges refund in respect of which was rejected on the ground that these services are of business auxiliary services. He submits that though service provider is registered under category of business auxiliary services, service of handling charges and bill of lading charged provided by him is the services which falls under the category of the port services and therefore port services being eligible for refund under Notification no. 41/2007-ST refund should not have been rejected. As regard the fumigation services, he submits that the refund was rejected on the ground that invoices issued by paste control of India did not mention the appellant address. He submits that the appellants name is mentioned in the invoices and explanation to this effect has not been considered by the Commissioner. It is his submission that since the name of the appellant is mentioned on the invoices of the pest control of India and the payment for the same was made by them to clearing and forwarding agent who was the agent for the appellant, refund claim was legally admissible to the appellant. He further submits that Ld. Commissioner rejected the refund on the ground that the appellant had not submitted written agreement and accreditation of the competent authority, he submits that regarding this ground appellant was not put to notice therefore refund was denied arbitrarily. As regard the bank charges, he submits that the refund claim was rejected on the ground that service tax amount is not separately indicated in the bank advice. It is his submission that bank advice clearly had mention that the bank charges inclusive of service tax @10.30%, therefore no further requirement should be asked for and service tax amount can be easily calculated from the bank advice itself. Regarding the service tax on transport of goods by road the refund was denied on the ground that the lorry receipt does not bear the export invoice number, he submits that before the Commissioner (Appeals), they have co-related the invoices with lorry receipt by the help of carton number which is the same in lorry receipt as well as other documents, invoices, packing list therefore nexus was clearly established. As regard the refund of courier services, it was rejected on the ground that on the courier receipt import export code number and nature of courier was not mentioned, he submits that international courier is exclusively used for international trade only and the same service which exclusively used for export business even if some procedure lapse such as non mention of nature of courier, refund should not been rejected. He placed reliance on following judgments:
(i) Caliber Point Business Solutions Ltd. Vs. Commr. of S.T., Mumbai[2010(18) S.T.R. 737 (Tri.-Mum)]
(ii) Fibre Bond Industries Vs. Commissioner of Service tax, Mumbai [Order No. A/937/13/SMB/C-IV dated 3/12/2013].
(iii) Akanksha Overseas Vs. Commissioner of Service Tax, Surat [Order No. A/1351-1358/WZB/AHD/2012 dated 31/8/2012]
(iv) Cbay Systems (India) Pvt. Ltd. Vs. Commissioner of C. Ex. Mumbai [2011(21) S.T.R. 668 (Tri. Mumbai)]
v) Khatau Narbheram & Co. Vs. Commissioner of Central Excise Customs & Service tax [Order No. A-118/KOL/2012 dated 2/3/2012]
4. On other hand, Shri. S.R. Nair, Ld. Examiner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.
5. I have carefully considered the submissions made by both sides and perused the records.
6. I have observed that there is vast differences between discrepancies raised in the show cause notice and the ground on which original order as well as first appellate authority order was passed. It is settled law that proceeding which is beyond the scope of the show cause notice cannot be sustained. The show cause notice is foundation of the case without foundation building cannot be erected. Similarly without making specific charges in the show cause notice, on different ground adjudication cannot be done. I agree, the assessee make refund claim under a particular notification in this case 41/2007-ST, the claimant has to satisfy the sanctioning authority regarding the condition of the notification. However I found that submission of the Ld. Counsel that as regard the refund on agency charges from the records it is not found that service is towards technical inspection and testing charges. Since the agency charges charged by the clearing and forwarding agent, it is deemed to be the service of clearing and forwarding agent, therefore refund is prima facie allowed on such services. On the other services, I find that the services are more or less covered under the notification and refund is prima facie admissible to the appellant. However, final decision by this Tribunal cannot be taken as the proceedings of adjudication as well as first appellant authority was carried out beyond the allegation made in the show cause notice. If at all any additional information or documents are required by the sanctioning authority, they are duty bound to bring the same to the notice of the appellant, which was not done in this case. In view of the above position, I remand the matter to the Original adjudicating authority with direction that adjudicating authority would give sufficient opportunity to the appellant to produce their explanation as well as documents, if any, required against the queries, if any, made by the adjudicating authority and thereafter pass a fresh speaking order. Appeal is disposed of by way of the matter remand to the Original Adjudicating Authority in above terms.
(Operative part pronounced in court) Ramesh Nair Member (Judicial) sk 8 APPEAL NO. ST/87445/14