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The appeals are directed against Order-in-Appeal No RBT/73-74/2010 dated 26/11/2010, wherein the Ld. Commissioner partly allowed the appeals filed against Order-in-Original Nos. SKY/R-60/2009 dated 18-02-2009 and SKY/R-131/2009 dated 10-07-2009.

2. The facts of the case are that the appellant filed refund claim amounting to Rs. 93,034/- on 26-03-2009 for a period July, 2008 to September, 2008, and refund claim of Rs. 79,27,347/- for the period October, 2007 to June, 2008 was filed on 21-02-2008, 26-05-2008 and 29-08-2008. The refund claims filed under Notification No. 41/2007-ST dated 06-10-2007 in respect of General Insurance Service, Goods Transport Agency Service, Port Service (Terminal Handling Charges), Custom House Agent Service, Technical Certification & Inspection Service and Storage & Warehousing Service. The Adjudicating Authority has rejected the aforesaid claim vide Adjudication Orders dated 18-02-2009 and 10-07-2009. Aggrieved by both the Order-in-Originals, the appellant filed the appeals before the Commissioner (Appeals) who allowed the refund only in respect of transit insurance service however rejected claims of all these services and partly General Insurance related to Spot Insurance that is the stage prior to transit the goods. The Ld. Commissioner rejected the claim on the following grounds:-

(iii) Goods Transport Agency Service  Exporter invoice details relating to export goods are not mentioned in the lorry receipt and corresponding service. The appellant have not given declaration in the refund claim as per condition (iv) of notification.
(iv) Custom House Agent Service  On checking of sample invoices, it was found that the appellant is not satisfied the conditions (i)(a), (b) and (c) i.e. invoice of Custom House Agent does not bear (a) number and date of shipping bill, (b) description of export goods, (c) number and date of export invoice.

3. Shri R. V. Shetty, Ld. Counsel for the appellant submits that they have given up the claim in respect of Technical Certification & Inspection Service and only contesting the rejection of refund claim in respect of Port Service (Terminal Handling Charges), General Insurance Service, Goods Transport Agency Service, Custom House Agent Service, and Storage & Warehousing Service. It is his submission that in respect of Port Service, there is no dispute, that service provided by the port authorities but the bills were raised by the port authority to Custom House Agent/ Shipping Line Agent/ Clearing & Forwarding Agent etc on the behalf of the exporters and in turn these agencies raised bills to the exporter. This is a general practice prevailing in respect of Port Service. Therefore, except the billing pattern the service remaining as Terminal Handling Charges, therefore admissible for refund. Regarding Spot Insurance, he submits that export goods stored in the godown are assigned lot number and the lot number is reflected on input service provider invoice as export invoice/shipping documents, therefore the export goods can be easily correlated with insurance policy. He also submits that the documents issued by insurer, including reinsurer for payment of insurance premium are specific to export goods and are in the name of exporter. Therefore, there is a direct correlation of export with the insurance policy. Regarding Goods Transport Agency Service he submits that the charge for non-compliance of condition is procedural, however the Goods Transport Agency Service used for transportation of export goods are not in dispute therefore the refund should not be rejected. He placed reliance on the judgment of CCE, Ahemdabad-II vs. Dishman Pharmaceuticals & Chemicals Ltd. [2010-TIOL-1639-CESTAT-AHM]. As regard refund in respect of Custom House Agent Service, he submits that the conditions (i)(a), (b) and (c) of Notification No. 41/2007-ST are procedural. However the correlation of export goods can easily be established on the basis of documents such as export invoice, shipping bill, bill of lading and input service providers invoice etc. Therefore substantial benefit of refund could not have been denied. He further submits that the lower authorities rejected the refund claim in respect of Storage and Warehouse Service for non-fulfillment of condition (i) and (ii). He submits that the Storage & Warehouse Service used only for export goods. The correlation of export goods with input services can be easily established on the basis of documents such as export invoice, shipping bill, bill of lading and input service providers invoice etc. Therefore merely for lapse of procedural condition, refund could not have been rejected. In support he placed reliance on the following judgments:

6.1 As regard Port Service, refund was rejected on the ground that the invoice was not issued either by the port authorities or their agent. Therefore, on the invoices issued other than the said persons refund in not admissible. We do not agree with this ground alone for the reason that it is an admitted general practice that in respect of Port Services, the port authorities issue invoices for the services in favour of Custom House Agent/Shipping Line Agent/Clearing & Forwarding Agent and in turn these persons raise invoices to the client. In the present case the service tax amount has been shown in the invoices, however the same was not verified. Regarding the payment of service tax on the port services it needs to be verified.