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2019 (5) TMI 1435 - AT - Service TaxRefund claim - N/N. 52/2011 dated 30.12.2011 - Exporter or not - HELD THAT:- The assessee is in appeal before the Tribunal on the ground that all the conditions are satisfied under Notification No.52/2011 and also as per the clarification issued by the CBEC, vide Circular No. 104/4/2008 dated 12.05.2008 (Para 4.1) being satisfied by the appellant/assessee and the export being made through M/s MMTC Ltd. which was the statutory provision in the Trade Policy Schedule-II, SL. 80 and the money is realized after the export of the goods. The service tax paid in terms of the services utilized in the export of goods to be claimed as refund was rightfully sanctioned. It is apparent that M/s MMTC Ltd. stands indemnified of all claims, damages etc, of the foreign buyer and/or vessels owner in respect of exports to be made through them and M/s S. K. Sarawagi & Co. Pvt. Ltd. (the appellant herein), the owner of the goods, is not allowed to export directly under Section 2 (20) of the Customs Act, 1962 as well as under the definition of ‘exporter’ in the Foreign Trade Policy, 2009-14 under Chapter 9.26. The Role of M/s MMTC Ltd. is only like an intermediary because of the restriction imposed in the Foreign Trade Policy Schedule-II, SL. 80 which states that the Manganese Ore can only be exported through MMTC Ltd. The restriction imposed in respect of Manganese Ore is governed by Section 3 of the Import and Export (Control) Act, 1947. The role of M/s MMTC Ltd. in the export of Manganese Ore is a compulsion to be observed by the appellant/assessee and it is not by choice which has led to the present dispute. Appeal allowed - decided in favor of appellant.
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