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2013 (12) TMI 330 - CESTAT NEW DELHIDenial of refund claim - Benefits under exemption Notification No. 41/2007-ST dated 16.10.2007 - Terminal handling charges - Assistant Commissioner sanctioned refund claim - Revenue claims partial recovery claiming exemption inapplicable in respect of terminal handling charges - Held that:- Notification No. 17/2009-ST is an exemption Notification issued by the Central Government in exercise of powers conferred under Section 93(1) of the Finance Act, 1994 (the Act). By this Notification, the taxable services specified in column (3) of the table (appended to the Notification) received by an exporter of goods and used for export of goods pertaining to the enumerated sub-clauses of Section 65(105) as specified in the corresponding entry in column (2) of the table are exempted from the whole of the service tax leviable under Section 66 and 66A of the Act, subject to the conditions set out in the table. On a true and fair construction of the relevant entry at Sl. No. 2 of the table under exemption Notification No. 41/2007-ST, the inference is compelling that any service provided in relation to port services in a port, in any manner to an exporter and where such service is used for export is exempted from whole of the service tax leviable under Section 66 and Section 66A of the Act - By reference to the exemption provided at Sl. No. 16 of the table in Notification No. 17/2009-ST, the adjudicating authority inferred; and in the considered view of this Tribunal erroneously, that terminal handling charges when provided within the port do not fall under port services vide the Notification No. 41/2007-ST. This conclusion of the adjudicating authority which found resonance in the order of the Commissioner (Appeals), is in my considered view erroneous and proceeds on a fallacious interpretation of the provisions of Notification No. 41/2007-ST - Decided in favour of assessee.
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