At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad
By, THE HONOURABLE MR. P.K. DAS
By, MEMBER (JUDICIAL) & THE HONOURABLE MR. P.M. SALEEM
By, MEMBER (TECHNICAL)
For the Appellant: Dr. J. Nagori, Authorised Representative. For the Respondent: J.C. Patel, Rahul Gajera, Advocates.
1. Revenue filed these appeals against the order of Commissioner (Appeals), where the Adjudication order was modified insofar as the refund claim filed by the Respondent in respect of CENVAT Credit of input Service Tax on Courier service and CHA service under Rule 2 (l) of CENVAT Credit Rules, 2004 was allowed and the refund claim which is not filed within 60 days from the end of relevant quarter during which the said goods have been exported, was rejected.
2. The Respondents were engaged in the manufacture of PP Medicaments and also availing CENVAT Credit under CENVAT Credit Rules 2004. The Respondents filed one refund claim on 30.09.2009 for the period 01.01.2009 to 31.03.2009 and another refund claim filed on 29.12.2009 for the period 01.04.2009 to 30.06.2009 in respect of Service Tax paid by them on several services received and utilized in export of the goods during the period from January 2009 to June 2009 under Notification No.41/2007-ST, dt.17.10.2007 as amended by Notification No.03/2008-ST, dt.19.02.2008. The Respondents filed refund claims in respect of services used by them in export of goods viz. Customs House Agent (CHA) charges and Courier/Freight charges. Two show cause notices dt.10.12.2009 and 05.04.2009 were issued, proposing to reject the refund claims on the ground of non-fulfillment of conditions of the notification. The Adjudicating authority rejected the refund claim for non-fulfillment of the provisions of Notification No.41/2007-ST, dt.06.10.2007 as amended. By the impugned order, the Commissioner (Appeals) allowed the refund claim on CHA services and Courier services on Service Tax paid by the Respondents.
3. The learned Authorised Representative for the Revenue reiterates the grounds of appeal. He submits that the Respondents failed to fulfill the conditions of the notification as observed by the Adjudicating authority in the Adjudication order. It is submitted that the Commissioner (Appeals) had not examined this issue. He relied upon the following decision as under:-
i) King Metal Works Vs. CST Mumbai - 2015 (38) STR 973 (Tri-Mum)
It has been held that the refund claim was rightly rejected on the ground of non-fulfillment of condition regarding furnishing of contract and non-mentioning of amount paid to commission agent in the shipping bills.
ii) CCE Vs. U.P. State Sugar Corporation Ltd. - 2015 (321) ELT 629 (All.)
It has been held that the procedure prescribed under Rule 21 of Central Excise Rules, 2002 for remission of duty, required to be followed for claiming remission.
iii) CCE New Delhi Vs. Avis Electronics Pvt. Ltd. - 2000 (117) ELT 571 (Tri-LB)
It has been held that credit denied in cases, where the manufacturer did not even care to inform the Assistant Collector about loss of duplicate copy of invoice.
iv) CCE Ahmadabad Vs. Amee Castors & Derivatives Ltd. - 2013 (30) STR 467 (Tri-Ahmd.)
It has been held that refund claim of fumigation charges not admissible in the absence of written agreement and in the absence of non-fulfillment of conditions stipulated in Notification No.41/2007-ST.
4. On perusal of the grounds of appeal, we find that the main contention of the Revenue is that the service tax paid by the service provider under some different services (i.e. other than CHA), cannot be considered to be paid under CHA service. It is stated that the service provider wrongly paid the Service Tax under CHA, which would be covered under the category of taxable services as Business Auxiliary Service. We are unable to accept the contention of the Revenue for the reason that it is well settled that the jurisdictional Central Excise officer of the recipient of the service, cannot question the classification of the service of the service provider. It has further been stated that the Respondent had not fulfilled the condition specified in the schedule to the notification. The learned Authorised Representative for the Revenue submitted a copy of the relevant invoice during the course of hearing. The learned Advocate demonstrated that all the information as required under the law had complied with. We find that the Revenue had not mentioned any specific irregularity to the extent of non-fulfillment of condition of notification in their grounds of appeal. So, we are not impressed with the grounds of appeal of the Revenue.
5. Regarding the denial of refund on Courier service, it is stated that by the Revenue in their grounds of appeal that invoices submitted by the Respondent (issued by service provider) does not specify the Import Export Code (IEC), number of exporters, export invoice number, nature of courier. We find that the schedule to the exemption notification provides that 'the receipt issued by the courier agency specify the importer-exporter (IEC) code number of the exporter, export invoice number, nature of courier, destination of courier including name and address of the recipient of the courier'.
6. In the present case, the learned Advocate on behalf of the Respondent placed the copies of receipts received from the courier would show all the details. Hence, there is no force in the submissions of the learned Authorised Representative for the Revenue.
7. The Tribunal in the case of Amar International Vs. Commissioner of Service Tax, Mumbai - 2015 (37) STR 810 (Tri-Mum.), held that if the Assessee is eligible for refund of service tax paid on courier service, the denial of refund for failure to mention export invoice number and IEC are merely procedural infirmity when the payment of service tax and export of the goods are undisputed. We find that the Notification No.17/2009-ST, dt.07.07.2009 exempts the taxable services specified in Column (3) of the schedule appended to the said notification, received by an exporter and used for export of the goods from the whole of the service tax leviable thereon, subject to the conditions specified in the corresponding entry in Column (4) of the said schedule. In the present case, there was no dispute that the Respondent received the services specified in the schedule to the said notification and used for export o
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f the goods. This fact was not disputed by the Revenue in their grounds of appeal. The Commissioner (Appeals) observed that the Respondent has submitted the copies of all shipping bills, ARE-1. The Revenue had not mentioned the non-fulfillment of the specific conditions in their grounds of appeal. So, we do not find any force in the appeals filed by the Revenue. The case-laws cited by the learned Authorised Representative for the Revenue would not be applicable in the facts and circumstances of the case. 8. In view of the above discussion, we do not find any reason to interfere the order of Commissioner (Appeals). Accordingly, the appeals filed by the Revenue are rejected.