Custom, Excise & Service Tax Tribunal
Cargill India Private Ltd vs Commissioner Of Service Tax, New Delhi on 27 June, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH-160017 SINGLE BENCH COURT NO.1 Appeal No. ST/598-599/2011 [Arising out of the Order-in-Appeal No. 55-56-BK-GGN-2011 dated 07.02.2011 passed by the CCE (Appeals), Delhi-III, Gurgaon] Date of Hearing/Decision: 27.06.2017 For Approval & signature: Honble Mr. Ashok Jindal, Member (Judicial) Cargill India Private Ltd. Appellant Vs. Commissioner of Service Tax, New Delhi Respondent
________________________________________________ Appearance Shri. Amrinder Singh, Advocate- for the appellant Shri. V.K. Tehran, AR- for the respondent CORAM: Honble Mr. Ashok Jindal, Member (Judicial) FINAL ORDER NO: 61223-61224 / 2017 Per Ashok Jindal:
These appeals have been filed by the appellant against the impugned orders wherein the refund claims filed by the appellant under Notification 41/2007-ST dated 06.10.2007 has been rejected.
2. The facts of the case are that the appellant filed two refund claims under the above said Notification for the services received by them in their export of goods namely: Port Service, Inspection Certification Services, Customs House Agent and Storage Warehousing Service. The refund claims were rejected on the ground that the services claim to the port services are not port services and invoice issued by M/s J.M. Baxi having ambiguous description of service and evidence of payment of service tax has not been produced. With regard to Inspection and certification Service, it was alleged that invoices are not invoices with respect to export of goods and stuffing of containers not form part of Inspection and Certification Services. For Customs House Agent Services, all details were not provided in the invoices. With regard to Storage Warehouse Services, the invoice did not show that whether the said services has been used for export of goods. Both the authorities below, rejected the refund claim. Aggrieved from the said orders, the appellant is before me.
3. Heard the parties and considered the submissions.
4. Each of the issue is dealt separately:
(A) Port Services:
It has been alleged that the services availed by the appellant does not fall under the category of port services.
I find that vide Circular No. 112/6/2009-ST dated 12.03.2009 it has been clarified that the services do not necessarily have to be port services but the same must be related to export of goods. Admittedly, there is no dispute regarding services availed by the appellant for export of goods at the port of export, therefore, the refund claim cannot be denied on that ground. Further, the refund claim sought to be denied on the ground that the invoices issued by the J.M. Baxi having ambiguous description of service and evidence of payment of service has not been provided, in fact, the certificate produced by the appellant shows payment of service tax has been made under the category of CHA and the said certificate also clarifies that the services are used for CHA services. Therefore, the appellant is entitled for refund of the port service.
(B) Inspection and Certification Service:
The refund claim has been denied on the ground that the invoices are not issued in respect of export of goods and stuffing of containers not form part of Inspection and Certification Services.
I find that the certificate issued by the Service provider clearly provides that the services were with respect to the export of goods, Further, I find that in the case of Kriti Industries (l) ltd. reported in 2016 (43) STR 443 (Tri. Del.) and Agro Solvent Products P. Ltd. reported in 2015 (40) STR 604 (Tri. Del.) held that as the appellant has borne the expanses of Technical Testing and Analysis Service and tax has been calculated under the said heading and no objection has been raised on that account. In that circumstances, the refund claim cannot be denied to the appellant. It is admitted that in the case in hand, the service tax has been borne by the appellant, therefore, the refund claim cannot be denied to the appellant on those grounds.
(c) Customs House and Agent Service:
It is alleged that all the required details were not provided in the invoices, in fact, the circular dated 12.03.2009, clarifies that procedural violations should be dealt with at the end of the service provider and not the end of the service recipient i.e. appellant, therefore, it is fact on record that the appellant has received services and paid service tax thereon, therefore, the appellant is entitled for refund claim.
(D) Storage and warehousing service:
The sole allegation is that invoices does not show that the services has been used for export of goods. As it is fact on record that these services have been received for export of goods and not contraverted by any positive evidence, therefore, the refund claim cannot be denied on this ground.
In result, the refund claims filed by the appellant are allowed. Accordingly, the impugned orders are set aside. Consequently, the appeals are allowed.
(Dictated and pronounced in the open court) Ashok Jindal Member (Judicial) rt 4 ST/598-599/2011 Cargill India P. Ltd. Vs. CST, New Delhi