Custom, Excise & Service Tax Tribunal
M/S. Amar International vs Commissioner Of Service Tax, Mumbai on 16 April, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. ST/152, 153/2011-Mum. (Arising out of Order-in-Appeal No. RBT/75/2010 dated 26.11.2010, RBT/70/2010 dated 22.11.2010 passed by the Commissioner (Appeals) Central Excise, Mumbai-I ) For approval and signature: Honble Mr. P.K.Jain, 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 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 :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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M/s. Amar International
:
Appellant No.1
M/s. Amar Impex
Appellant No.2
VS
Commissioner of Service Tax, Mumbai
:
Respondent
Appearance
Shri Keval Shah, C.A. for Appellant
Shri Rakesh Goyal, Additional Commissioner (A.R) for respondent
CORAM:
Mr. P.K. Jain, Member (Technical)
Date of hearing : 16/04/2014
Date of decision : 16/04/2014
ORDER NO.
The issue involved are common and the appellants are group firms/companies. The appellant No.1 is exporting foodgrains. While exporting foodgrains appellant uses Port Services, Couriers service, Customs House Agent Service and Technical Testing & Inspection Service. They claim the refund of the tax paid on the said input services. In case of appellant No.2 the goods being exported are dye intermediates while exporting the dye intermediates, appellant uses Port Service, courier service, Goods Transport Agency Service, Custom House Agent service. They also claim refund of the tax paid on the said input services. Appellants had filed refund claims pertaining to the period January to March 2008 and April to June 2008 which were rejected on various grounds by the original authority and first appellant authority. The refund of service tax paid on the port services have been rejected on the ground that the invoices are of CHAs who are not authorized to provide terminal operator service within the port area. The appellants contention is that they have assigned all the work relating to export from documentation to physical export to the Custom House Agent who in turn uses services of various service provider within the port area and based upon charges of such service provider, invoices are being raised by the CHA and in all cases service tax has been paid. There is no dispute on that aspect. In respect of the courier service the contention is that certain goods were exported through courier service, invoice of the courier service does not show the IEC code of the appellant even though the name of the appellant is clearly mentioned. Similarly, export invoice number is not mentioned even though the description of the goods as mentioned in export invoice is given in the Courier receipt/invoice. In respect of the goods transport service, appellant has not filed appeal and conceding to the departments decision. As far as the Custom House Agent Service is concerned, the issue is that Notification No.41/2007-ST dt. 6.10.2007 was amended so as to include the Customs House Agent service w.e.f.1.4.2008. According to appellant there are few invoices which are pertaining to the period prior to 1.4.2008 and other invoices are pertaining to period after 1.4.2008, The appellants request is that the matter may be remanded in respect of Custom House Agent Service so the department can verify the invoice post 1.4.2008 and examine their claim. In respect of all those invoices prior to 1.4.2008 they are not pressing the claim. In respect of appellant No.1 i.e. M/s. Amar International all the invoices are post on 1.4.2008. Another objection in the case of CHA invoices relating to Appellant No.1 is that the export invoices number is subsequently mentioned by hand and it is not printed one. As far as technical testing inspection service is concerned appellant has neither been able to produce any written agreement between the buyer and themselves nor produce details of any requirement stipulated in any domestic rules and regulations.
2. Learned A.R. reiterated the findings of the Commissioner (Appeals). Learned A.R argued that CHA is not authorized to provide the services in the port area and therefore he could have not issued the invoices relating to port services. In case of courier service the IEC Code of the appellant are not mentioned. Similarly export invoice number are also not mentioned and therefore it is not possible to say that the courier service was in respect of the goods exported. In respect of technical testing inspection service, Learned A.R. argued that appellant has admitted that there was no written agreement between the buyer and themselves for such testing/inspection. Appellant are not able to produce any statutory rules or regulations under which they were required to get the inspection done. Under the circumstance they are not eligible to get the refund of service tax paid on such services. As far as Custom House Agent Service is concerned, Learned A.R. submitted that the Commissioner (Appeals) finding in respect of appellant No.1 is that export invoices were subsequently introduced in the invoices of CHA and therefore appears to be manipulated so as to become eligible for refund.
3. I have considered the submissions. As far as the refund of service tax paid on port service is concerned, objection is that the invoices are from M/s. Fourstar Enterprises who is a Customs House Agent and is not authorized to provide the terminal operator service and hence could have not provided and collected the service tax relating to port service. I find that the Custom House Agent in addition to handling the documentation and customs formalities, they also handle the goods in the port area and uses the services of various service providers operating in the port area. It is not in dispute the goods were exported, were handled in the port area, terminal handling operation were carried out and service tax on such port services was paid which would have been carried out at the instances of CHA perhaps by some other service provider/authority and under the circumstances it will not be appropriate to deny the refund of the service tax paid on the port service, just because invoices are of CHA who is not authorized to provide port service. In respect of the courier service. I find the objection is only that in the invoices issued by the courier agency service, export invoice number & IEC code of the appellant are not mentioned. There is no dispute that the details of the appellant/exporter as also description of goods are mentioned in these invoices. Under the circumstances the objections can at the most be called procedural infirmity. There is no dispute about the service tax payment and otherwise eligibility. Accordingly, I hold that the appellant is eligible to get refund of the service tax paid on the courier service. As far as technical testing and inspection service is concerned, appellant has failed to satisfy the conditions of Notification No. 41/2007-ST as they have not been able to produce any written agreement between the buyer and themselves or any statutory rules under which the said testing or inspections were carried out. In view of this position, they are not eligible for getting the refund of service tax paid on the Technical testing and inspection service. In respect of the Custom House Agent Service relating to appellant No.1, the export invoice number is subsequently mentioned. Here again there is no dispute that the goods were exported and there is no dispute about the description or quantity and the goods. Objection is again procedural and the appellant is eligible to get the refund of the said service tax paid. In respect of appellant No.2 some of the invoices are pertaining to period prior 1.4.2008 and some of the invoices for period after 1.4.2008. Appellant No.2 would be eligible to get the refund, in respect of the invoices which pertain to the period on or after 1.4.2008. In respect of refund of service tax on the said service the matter is remanded to the original authority to verify the details and thereafter sanction the refund in respect of the invoices which pertain to period after1.4.2008.
4. The two appeals are disposed of in above terms.
(Dictated in court) (P.K. Jain) Member (Technical) Sm ??
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