Custom, Excise & Service Tax Tribunal
Cce, Indore vs M/S Kriti Industries (I) Ltd on 3 March, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. II DATE OF HEARING : 03/03/2016. DATE OF DECISION : 03/03/2016. Service Tax Appeal No. 942 of 2009 [Arising out of the Order-in-Appeal No. IND-I/203-204/2009 dated 31/08/2009 passed by Commissioner (Appeals-I), Customs & Central Excise, Indore.] For Approval and signature : Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, 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 would 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 : Department Authorities? CCE, Indore Appellant Versus M/s Kriti Industries (I) Ltd. Respondent
Appearance Shri Kamlaya Poddan, Authorized Representative (DR) for the appellant.
Shri Ashutosh Upadhayay, Advocate for the Respondent.
CORAM: Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 51004/2016 Dated : 03/03/2016 Per. B. Ravichandran :-
The Revenue is in appeal against order dated 31/08/2009 of Commissioner (Appeals-I), Indore. The issue involved is the eligibility of respondent for exemption/refund in terms of Notification No. 41/2007-ST dated 06/10/2007 in respect of services availed by the respondent while exporting their finished goods. The respondents are engaged in the export of excisable goods Soyabean Meal extraction manufactured by them. They have filed claim for refund of service tax paid to the service providers under various categories namely Technical and Testing Services, Custom House Agent Services, Technical Inspection and Certification Services. The claims were examined and decided by the Original Authority. The Department preferred appeal against the sanction of refund on the ground that the Adjudicating Authority have not appreciated the fact that such exemption and refund is admissible only in respect of services specified in the said notification. The various services availed by the respondent are not specified under the said notification. It was alleged that services of Supervision of weighment, Sampling Container, Stuffing Analysis, Supervision Charges sampling and dispatch, Additional Testing Charges are not specified services for allowing such exemption and refund. The Commissioner (Appeals) vide his impugned order rejected the Departments appeal and upheld the sanction of refund except for a minor modification. Aggrieved by this order, the Revenue preferred this appeal.
2. In the grounds of appeal it is submitted that the learned Commissioner (Appeals) is not correct in allowing the refund in respect of those services which are not specified under the Notification No. 41/2007-ST. It was contended that the various services, as mentioned above, are not specified services for refund. These are not covered under Section 65 (105) (zzh) of the Finance Act, 1994 which covers the scope of Technical Inspection and Certification Service.
3. We have heard both the sides and perused the records. We find that the Commissioner (Appeals) have examined the issue in detail before arriving at the conclusion. The services now under dispute were provided by registered service providers under the category of Technical Testing and Analysis Services. The tax has been collected under the said heading and no objection has been raised on that account. As such, the Commissioner (Appeals) found that the denial of refund of service tax paid by the respondent for the services for which they have paid service tax under the category of Technical Testing and Analysis is not justified. He also observed that it is possible that a service may appear to be classifiable under more than one heading. Proper classification will be guided by the essential character in case of composite services. After due examination, the learned Commissioner (Appeals) held that the respondents are correctly eligible for refund. After careful consideration of the grounds of appeal and the impugned order, we find no merit in the present appeal and accordingly dismiss the same.
(Operative part of the order pronounced in the open court.) (Ashok Jindal) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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