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2022 (9) TMI 1340 - AT - Service TaxDisallowance of refund claim - amount in respect of invoices issued by AB Commercial for transportation of iron ore fines - to be qualified under ‘GTA services’ or ‘Cargo Handling Services’? - HELD THAT:- The Adjudicating authority vide Order-in-Original dated 23.09.2010 had allowed the refund claim of the Appellant in respect of the transportation Bills issued by AB Commercial totaling to Rs.2,22,119/- observing that the goods were carried upto the point of port of export from origin and that this is sufficient to have a nexus with the exportation of the goods. Thus, the amount of Rs.2,22,119/- is liable to be considered for sanction. Subsequent to the above order of the Adjudicating authority sanctioning the refund, the Department had preferred an Appeal before the Commissioner of Central Excise (Appeal-I) alleging that the invoices issued by AB Commercial were related to ‘Cargo Handling Services’ and not ‘Goods Transport Agency (GTA)’ as claimed by the Appellant and there is no provision for exemption under Notification No.17/2009 dated 07.07.2009 for ‘Cargo Handling Services’. Hence, the amount of Rs.2,22,119/- has been erroneously refunded vide Order-in-Original. After following the due process of law, the Ld.Adjudicating authority vide de novo Order-in-Original dated 03.02.2012 disallowed the refund claim of Rs.2,22,119/-. Against the said de novo order, the Appellant filed Appeal before the Ld.Commissioner(Appeals) and the Ld.Commissioner(Appeals) vide the impugned Order-in-Appeal rejected the Appeal filed by the assessee holding that the refund sanctioned on the invoices issued by M/s. AB Commercial to the tune of Rs.2,22,119/- is not admissible. The facts of the present case are squarely covered by the decision in the case of Rungta Projects Ltd. Vs. CCE & ST, Allahabad [2017 (9) TMI 791 - CESTAT ALLAHABAD] where it was held that transportation of coal was the essential service provided by the assessee and the activity of loading and unloading of coal was instantly for transportation and therefore service rendered by the assessee did not fall within the definition of ‘Cargo Handling Service’. The impugned orders cannot be sustained and is accordingly set aside - appeal allowed - decided in favor of appellant.
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