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2015 (1) TMI 1044 - GUJARAT HIGH COURTRefund claim - Whether CESTAT was right in considering the charges for Terminal Handling charges and Repo Charges covered under Sections 65(105)(zn), despite clear legal provisions given in the Finance Act, 1994 and relevant Notification issued thereunder - Held that:- Tribunal had relied on its previous decision in case of M/s. Macro Polymers Pvt. Ltd. v. CCE, Ahmedabad, dated 4-6-2010 - [2010 (6) TMI 257 - CESTAT, AHMEDABAD]. In such a decision, the Tribunal considered various aspects of exemption under the said Notification vis-a-vis services covered by virtue of Section 65(105)(zn) of the Finance Act, 1994. - Government issued another Notification No. 17/2009-S.T., dated 7-7-2009, in which for all services classified under Clause (105) of Section 65, exemption was granted from payment of Service Tax paid on services commonly known as “terminal handling charges”. Of course, as rightly pointed out by the learned counsel for the respondent, such Service Tax had to be paid by the service provider and refund thereto had to be claimed by the exporters services recipients. However, we are not concerned with the modalities of this Exemption. Suffice to note, juxta position to the earlier Notification, dated 6-10-2007, in the subsequent Notification, dated 7-7-2009, the exemption was available to all services classified under sub-clause (zn) of Clause 105 of Section 65. It is thus, not in dispute by virtue of subsequent Notification, dated 7-7-2009, there is no conflict between the department and the assessee. The period of conflict therefore, gets narrowed down to two dates between the two Notifications. - The department seems to be contending that the services provided by the respondents would not fall under sub-clause (zn) of Clause 105 of Section 65. Even if, Department has some arguable point there, however, in the present appeals, it is not disputed that in majority of the cases, Service Tax were collected under such entry. When the assessee claimed exemption, as provided in Notification, dated 6-10-2007, the Department has issued Show Cause Notice why the refund claim should not be rejected, since Service Tax does not fall under Section 65(105)(zn) at all. Having previously collected the Service Tax under such heading, we are doubtful whether such reverse stand could have been taken. In totality of the facts and circumstances of the matter, no question of law arises - Decided against Revenue.
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