Custom, Excise & Service Tax Tribunal
M/S Aia Engineering Ltd vs C.C.E. Ahmedabad-Ii on 31 August, 2017
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/12241-12245,10547-10549,11232/2014-SM [Arising out of OIA No.AHM-EXCUS-002-COMMR-063 to 067-13-14 dated 12.03.2014 passed by CCEAhmedabad] M/s Aia Engineering Ltd. Appellant C.C.E. Ahmedabad-II Vs C.C.E. Ahmedabad-II Respondent
M/s Aia Engineering Ltd.
Represented by:
For Appellant: Sh. HardikModh (Advocate) For Respondent: Sh. J. Nagori, A.R. CORAM:
HONBLE DR. D.M. MISRA, MEMBER (JUDICIAL) Date of Hearing/decision:31.08.2017 Final Order No. A/12244-12252 /2017 Per: Dr. D.M. Misra:
Revenue has filed four appeals and the assessee has filed five appeals against the respective orders-in-appeals, since involve a common issue, are taken up together for disposal.
2. The central point of disputeraised in these present appeals for determination is: whether the assessee is entitled to refund of service tax paid on repo charges, haulage charges and terminal handling charges used for export of their goods as perthe Notification No. 41/2007 dated 06.10.2007 as amended.
3. The Ld. Advocate Sh. HardikModh, for the appellant submits that all these service on which service tax was paid had been used by them in the export of goods and the said services fall under the scope of Notification No. 41/2007 dated 06.10.2007 as amended at relevant time under the category of port service. It is his contention that the Revenue has not disputed the fact that these services had used in the export of the goods during relevant time. Eligibility of refund under the said Notification of the service tax paid on these services and used for export of the goods, is no more res integra and covered by the judgment of Honble Gujarat High Court in their own case reported as CCE vs Aia Engineering (P) Ltd. 2014 (36) STR 1236 (Guj.).
4. Ld. AR for the Revenue, on the other hand, submits that the service providers had paid the service tax under the category of Business Auxiliary Service(BAS), therefore, the classification of the said service cannot be altered in the hands of the receiver of service. Consequently, the Business Auxiliary Service being not prescribed under the Notification No. 41/2007 dated 06.10.2007, at the relevant time, therefore, refund of service tax paid on such services are not admissible to the appellant. In Support of his contention, the Ld. AR for the Revenue referred to the judgment of the Honble Supreme Court in the case of Sarvesh Refractories (P) Ltd. vs CCE 2007 (218) ELT 488 (SC).
5. In his rejoinder, the Ld. Advocate Sh. HardikModh, placed the sample invoices issued by the service provider whereunder these services were described as Terminal Handling Charges, Repo Charges etc. He has further submitted that against similar invoices eligibility of refund of service tax under the said Notification was considered and allowed by the Tribunal, which on appeal by the Revenue, has been confirmed by the Honble Gujrat High Court rejecting the Revenues Appeal in the aforesaid case.
6. Heard both the sides and perused the records.
7. I find that the Honble Gujrat High Court in the the appellants own case,for earlier period, considered the eligibility of benefit of Notification No. 41/2007 dated 06.10.2007 as amended, in relation to very same services and held that these services fall under the scope of the said Notification. The sample invoices placed by the Ld.Adv. for the assesse indicates that the service tax was paid by the service provider under the category of Business Auxiliary Service, however, the details of services rendered reflected on these invoices indicate the services as , repo charges, terminal handling charges, etc. which are covered by the judgment of the Honble Gujarat High Court in the assessees own case. Following the aforesaid judgment of the Honble Gujarat High Court, the service tax paid on the aforesaid services, undisputedly used in the export of goods by the assesse, are eligible to refund under Notification 41/2007 dated 06.10.2007, as amended. In the result, the Revenues appeal are dismissed and the appeals filed by the assessee are hereby allowed.
(Dictated and pronounced in the open court) (Dr. D.M. Misra) Member (Judicial) Neha 4 | Page E/12241-12245,10547-10549,11232/2014-SM