TMI Blog2008 (11) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... y them on Port Services and Services of Transporting the said goods from ICD to the port. The services, are classifiable under Section 65(105)(zn) and 65(105)(zzp), respectively. As per provisions of Notification No. 40/2007-S.T., dated 17-9-2008 as rescinded vide Notification No. 41/2007-S.T., dated 6-10-2007 a manufacturer-cum-exporter are not required to pay Service Tax on taxable services used in export of goods and claim refund later on. The department on scrutiny of the claims found that the appellant have not submitted any documentary proof to show that the Service Tax on the specified services as mentioned above, has been paid. The copy of bills submitted by the appellant did not show as to whether the appellant has paid the Service Tax or not. The department also alleged that conditions of proviso (e) of the paragraph 1 of the said notifications have not fulfilled by the appellant inasmuch as the appellant has claimed drawback claim on the goods exported, whereas the condition stipulates that said goods should be exported without availing drawback of service tax paid on the specified services under the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid service providers were registered port service provider authorized by the Port and also that the service tax shown therein has actually been paid to the Government account. It has also been held that the refund was not admissible on the services like THC, DOC/Documentation charges, Re-releasing charges and bill of lading charges because they were not the Port Services and also not the specified services for purpose of exemption. It was also held in the order that the appellant has not produced any evidence to prove that the parties whose bills have been submitted are providers of port services and have been authorized by such port or other port in any manner, in relation to vessel or goods, as provided under definition given under Section 65(82) of the Finance Act. The specific charges rendered in respect of port services as considered by department were Port and dock charges consisting of berthing and mooring charges, port dues, pilotage and towage, water supply charges, salvage and diver charges, anchorage fee; Cargo handling and storage charges consisting of wharfage for general cargo, warehousing charges, cranage charges, ore handling charges, wharfage on petroleum produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating Authority on the locus standi of Service provider whether they fall within the definition of port services, the Appellant crave leave and beg to submit the details of service provider on whom bills/debit notes the Appellants have claimed refund of service tax paid. The Appellants submit that the Service Provider, referred herein under are forwarders for the Shipping line providing services to the Shipping Line with regard to the Port services under which the Appellants export has been made. The provider of the Port Services is detailed as follows :- (a) Garun International has provided the Container and Bill of Landing Services and having Service Tax Registration No. AAHFG 0911HST 001, which is sufficient evidence to prove that the provider is a bona fide tax payer and authorized by the Port to provide Port Services. (b) M/s. EXIM GLOBAL has provided the Container and Bill of Lading Services and having Service Tax Registration No. AALHU6755GST 001, which is sufficient evidence that the provider is a bona fide tax payer and authorized by the Port to provide Port Services. (c) Kuelene + Nagpal (P) Ltd. and having Service Tax Registration No. AAACK2676HST 001, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Labour charges. 3. That this Hon ble chair will appreciate that by concealing the word some in specific services the Adjudicating Authority has illegally by misconstruing the provisions of law made a ground to reject the refund claim on the observation that the services as mentioned in the bills/ debit notes issued by the Service Provider are not qualifying for Port Services. The Appellant submit that the definition as mentioned in Board Circular is only clarificatory in nature and does not cover the purpose of the Finance Act, which by using the words Port Services means any Service has given broader definition and cannot be overridden any clarification. 4. That the Appellant further submits that with regard to the allegations that the Appellant failed to submit documentary evidence by way of bills raised by the provider. The Appellant submit that the required documents were submitted along with the refund claim and in his Order the Adjudicating Authority himself observed that the Appellant vide his Application dated 28-2-2008 the had submitted the copies of Invoices/debit notes/bills/freight bills issued by service provider and it forms part of Appeal paper book. 5. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red on behalf of the department. Discussion and Findings : 9. I have carefully gone through the facts of the case, the show cause notice, the Order-in-Original, the grounds of appeal, the documents filed in support of claim and the submissions and written brief put forth by the advocate of the appellant at the time of personal hearing. Since issue involved in both the appeals is common, I take up both the appeals for disposal by a common order. 10. The facts in brief are that the appellant, engaged in manufacture and export of Polyster Staple Fibres, has filed refund claims for Rs. 1,14,602/- and Rs. 1,13,657/- pertaining to the period from October, 2007 to December, 2007 and January, 2008 to March, 2008 respectively, in respect of Service Tax paid by them on Port Services and Services of Transportation from ICD to the port in relation to exported goods. The services, are classifiable under Section 65(105)(zn) and 65(105)(zzzp) of the Finance Act, 1994, respectively. As per provisions of Notification No. 40/2007-ST dated 17-9-2007 as rescinded vide Notification No. 41/2007-ST dated 6-10-2007 a manufacturer-cum-exporter are not required to pay Service Tax on taxable services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the port. Accordingly, show-cause-notices proposing denial of refund claim for said period were issued to the appellant, which have been decided vide impugned orders. The adjudicating authority while deciding the show cause notice, has denied the refund on the following grounds : Refund of Service Tax on Port Services : 12. The refund of Service Tax paid on port services has been denied on the ground that the bills submitted by M/s. Exim Global, Kuehne Nagel Pvt. Ltd., All Cargo Global Logistics Ltd., Garun Intenational and M/s. Globuslogisys Pvt. Ltd. pertain to THC and B/L Charges which are the services provided by the Forwarding Agency and are not the port services as claimed by the appellant. Also, the said services are not the service specified under the Notification No. 41/2007-ST dated 6-10-2007 or/and under Notification No. 40/2007-ST dated 17-9-2007. The said bills also do not show as to whether the services have been provided by the said providers and that the said service providers were registered port service provider authorized by the Port and also that the service tax shown therein has actually been paid to the Government. It has also been held that the refund was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of service tax paid under the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. The shipping bills filed by the appellant show that the drawback has been claimed by the appellant. The appellant s plea that the drawback was claimed on FOB value which does not include the expenses incurred on export was not considered. It was concluded that the sale price are arrived at by including all the expenses whether pertaining to export or otherwise. The expenses pertaining to export are inbuilt in the sale price, hence the drawback claimed on the value includes the drawback on account of service tax. Finally, the department held that no documentary evidence to show that the element of Service Tax has not been passed on to the other person has been produced before the authority. 15. The appellant however, has contended that the Assistant Commissioner has not considered the fact that the service providers in respect of port services were registered with the department and the payment of Service Tax under respective heads has not been disputed by the department. The service providers are the forwarders for shipping line, providing services to the shipping line with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue of admissibility of refund of Service Tax in respect transport charges first. Refund of Service Tax on Transport Services : 17. I observe that the department has held that refund of Service Tax on transport of goods shall be restricted to freight portion only. The Service Tax paid on other charges viz. MTTSC charges, Wharfrage charges, Grip charges and LDD TSC charges recovered by CONCOR from the appellant shall not be refunded. In this regard, I notice that the specified services in the appellants case were liable for classification under Section 65(105)(zzzp) of the Finance Act, 1994, since the containers containing the goods to be exported were transported by Rail from ICD, Kanpur to Port of export at Mumbai. The copies of receipt issued by CONCOR showing details of bills, the details of containers, date of shipment and payment particular; the shipping bills showing details of container, date of let export, place of shipment and port of export and the export invoice showing the invoiced value, as produced by the appellant clearly show that goods were carried from Kanpur to Mumbai by CONCOR. The details of cheque issued for clearing the payments inclusive of Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority are considered for a little while, I do not find any provision that restricts the forwarding agency to provide the port services after getting their Registration Certificate endorsed for the purpose. Moreover, the adjudicating authority has tried to distinguish the specified service by correlating it with the service provider, which is not proper. The right approach is that the service itself should have been distinguished. It is on record that all the service providers are registered with the department and their Service Tax registration numbers are mentioned on the bills/challans. The refund of Service Tax paid on services named as Terminal Handling Charges (THC), DOC charges, Re-releasing charges has been denied on the ground that these services do not fall under the definition of Port Services and are not specified services for the purpose of exemption. For arriving at this conclusion the adjudicating authority has relied upon the list of certain charges for services rendered in respect of port services that are mentioned in the clarificatory Circular No. B-11/1/2001-TRU dated 9-7-2001. I have gone through the said circular vis-a-vis the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax liability was borne by them. In case of any suspicion, it was open for the department to call for the additional information from the either end i.e. from the appellant or the service provider. The department has also alleged that the appellant did not produce any evidence to show that the service providers were the registered port service providers duly authorized by the port. In this regard, I observe that the Service Tax registration number was available on each invoice/challan and the fact of payment of Service Tax was mentioned therein. This was a clear-cut evidence to prove that the service providers were registered Service Tax provider. It was open for the department to conduct an enquiry, in case of any suspicion. The notification governing the provisions of refund, nowhere envisages for producing or submitting of any such certificate with the claim. In light of the observations hereinbefore, I find that the refund of service tax on the port service as claimed by the appellant was available to them. The observations of the adjudicating authority are liable to be set aside. Now coming to the final allegation of the department, I find that the condition (e) of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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