Custom, Excise & Service Tax Tribunal
Commissioner Of Customs, Central ... vs M/S. Sunflag Iron & Steel Co. Ltd on 26 May, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NO. ST/186/09 (Arising out of Order-in-Appeal No. SN/129/NGP/2009 dt.06/05/2009 passed by the Commissioner (Appeals) Central Excise & Customs, Nagpur. 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?
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Commissioner of Customs, Central Excise & Service Tax
:
Appellants
VS
M/s. Sunflag Iron & Steel Co. Ltd.
Respondents
Appearance
Shri Jhamman Singh,JDR Authorized Representative
None For resondent
CORAM:
Shri Ashok Jindal, Member (Judicial)
Date of decision : 26/05/2010
ORDER NO.
Per : Ashok Jindal, Member (Judicial)
Revenue has filed this appeal against the impugned order wherein the refund claim of the respondents on port services was allowed by setting aside the Order-in-Original.
2. The issue involved in this case is that whether the respondent is entitled for the benefit of exemption under Notification No. 41/2007-ST dt. 6.10.2007 as amended and whether the document submitted by the respondent along with refund claim was valid for claiming the refund of service tax.
3. The respondents filed a refund claim of service tax claiming the benefit of exemption Notification No. 41/2007-ST dated 6.10.2007. The respondents claimed the refund on the strength of bill raised by the service provider indicating service tax amount claim by the service provider from the respondent whereas the service tax paid by some other party. This indicated that the service provider who has issued the bill has not paid the service tax. Instead of they are claiming service tax to pay by other parties. A show cause notice was issued. On adjudication disallowed the claim for cargo handling services and port services. The respondent filed appeal before the Commissioner (Appeals), who allowed the appeal of the respondent. Aggrieved from the same, the Revenue is before me.
4. The learned DR submitted that the impugned order is not proper and legal. He further submitted that in this case the invoices were issued by the party who has actually paid the service tax and the party who has actually provided services has not raised the invoice. Hence in this case refund may not be allowed and the impugned order is illegal.
5. None appeared on behalf of the respondent and filed submissions saying that matter may be decided on merits and taken on records.
6. Heard and perused the records.
7. On careful examination of the impugned order wherein the Commissioner (Appeals) has considered the issue in detail and observed as under:-
I find that, the Refund Claim has been rejected by the lower authority on account of Cargo Handling Services for Rs.55,098/- on the ground that the Appellant has claimed the same in the name of Handling of container. On going through the documents and the definition of Cargo Handling Services it is clear that the services provided to the Appellant are nothing but Cargo Handling Services and simply the change of name claimed by the Appellant as Handling of Container will not bar the Appellant from claiming refund.
Further the refund claim of Port Services of Rs.52,813/- claimed by the Appellant have been rejected on the grounds that the documents have been found invalid. Payment of Service Tax is not disputed. The dispute is that the service provider is one Agency and the Service Tax stated to be paid by other. Further it is not disputed that the Appellant have not paid the service tax. Simply for the technical reasons the refund can not be denied.
The refund claim of Rs. 24,896/- in respect of Port Service against invoices of M/s. Glocol Logistics Pvt. Ltd., have also been disallowed. I have notice that this amount has not been sought to be disallowed in the Show Cause Notice. Here the lower authority has traversed beyond the Show Cause Notice. As such the order passed by the lower authority is not tenable as it is a settle law that no orders may be issued beyond ground in the Show-Cause-Notice It is not disputed that the respondent has not paid the service tax it is also not disputed that the respondent is not entitled to take the refund of service tax paid by the respondent as per Notification No. 41/2007-ST dated 6.10.2007. The Commissioner (Appeal) has dealt the issue in detail and I find that there is no infirmity in the impugned order and within the provisions of law. Hence, the impugned order is legal and proper. Accordingly, I have no reason to interfere with the same. Hence, the impugned order is upheld. The appeal filed by the Revenue is rejected.
(Pronounced in court) (Ashok Jindal) Member (Judicial) Sm 3