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TMI Blog2009 (10) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 17-9-2007 issued under section 93(1) of the Finance Act, 1994 exempts taxable services, specified in column (3) of the Schedule to this notification, which were received by an exporter and used for export of goods, from the whole of the service tax leviable thereon under sections 66 and 66A of the said Finance Act, subject to the conditions specified in the corresponding entry in column (4) of the Schedule. As per the provisions of this notification, the exemption has to be claimed by the exporter of goods for the specified services received and used by the exporter of the said goods and this exemption shall be provided by way of refund of service tax paid on the specified services used for export. Some of the services specified for ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 30,547 and Rs. 14,920 respectively have been wrongly sanctioned, as these amounts pertain to the service tax paid by the service providers on the amounts charged for the services which are not included in the exemption notification No.41 /2007-ST, dated 17-7-2007. The CCE (Appeals), vide orders-in-appeal No. IND-I/93-09, dated 31-3-2009 and No. IND-I/ 112/09, dated 22-4-2009 respectively only partly allowed the revenue's appeals by disallowing the refund of only Rs. 2 046 and Rs. 1,297 respectively and upheld the Dy. Commissioner's order for the remaining amounts of Rs. 28,501 and Rs. 13,623 respectively. The revenue has filed appeals before the Tribunal against these two orders dated 3 1-3-2009 and 22-4-2009 of the Commissioner of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in allowing refund to M/s. Vipro Exim Ltd., of service tax on account of "Agency services", as, if the said services were considered as services provided by Custom House Agent, the exporter was required to produce invoices issued by the custom house agent for providing the services specified in column (3) specifying (4) the number and date of shipping bill, description of export goods number and date of invoice issued by exporter relating to the export goods, and details of all charges, whether or not reimbursable, collected by the CHA from the exporter in relation to the export goods, which has not been done. (4) Refund is not admissible of the tax which was not payable by the service provider, but was paid. Any amount paid as tax, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rges, warehousing charges, container handling charges and railway haulage charges for rail borne cargo. (4) In any case, payment of service tax by the service provider to the Respondent exporters cannot be reviewed while considering refund of the service tax to the respondents. In this regard, reliance is placed on Tribunal's judgment in case of MDS Switchgear Ltd. v. CCE 2001 (132) ELT 405 (Mum. - Trib.) and CCEv. Trinetra Textu risers (P.) Ltd. 2004(166) ELT 384 (Mum. - Trib.). 3. I have carefully considered the submissions from both the sides and perused the records. 3.1 In Appeal No. ST/446/09-SM wherein M/s. Anant Commodities (P.) Ltd. are the respondents, the respondents, for export of Molasses during April-June, 2008 had used the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory which is not the amount charged for transportation of goods for export. 3.3 Tn appeal No. ST/583/09-SM, wherein M/s. Vipro Exim Ltd. are the respondents, the respondents exported Soyabeen De-oiled cake during April 2008 - June 2008, for which they received Port Services [ 65(105)(zn)j, Technical Testing and analysis service [ 65(105)(zzh)] and Custom House Agent services. [65(105)(h)] from various service providers who had paid service tax on these services whose incidence had been passed on to the Respondents. The Respondents filed a refund claim under Notification No.41/2007-ST for the refund of the service tax on these services, which was sanctioned by the Dy. Commissioner. The revenue seeks to disallow an amount of Rs. 13,623 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund of the disputed amounts is sought to be disallowed to the Respondents (Service receiver) by reviewing the assessment of the service tax at service provider's end. Tribunal in a series of judgment in the cases of- (i) MDS Switchgear Ltd. v. CCE 2001 (132) ELI 405 (Mum. - Trib.) (ii) Johnson & Johnson Ltd v. CCE 1999(112) ELI 901 (Mum. - Irib.). (iii) CCEv. NOEL Pharmaceuticals 1999(113) ELI 66 (Mum. - Trib.). Has held that Cenvat credit cannot be denied to a receiver of duty paid inputs, by the Central Excise authorities having jurisdiction over the input receiver, by revising the assessment of duty at the supplier's end. The same principle will be applicable to this group of cases and unless and until, the service tax payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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