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2015 (6) TMI 827 - CESTAT MUMBAI

2015 (6) TMI 827 - CESTAT MUMBAI - TMI - Refund under Notification No. 41/07-ST or No. 17/09-ST - Certain services notified on the date of claiming of refund and not on the date of export - Procedural infractions in respect of export documents - Held that:- This Tribunal in the case of East India Minerals Ltd. [2012 (8) TMI 22 - CESTAT, KOLKATA ] under somewhat identical circumstances, allowed refund for export related service under Notification no. 41/07-ST, since on the date of claim, the serv .....

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and relied upon by the Appellant, especially in the case of Riddhi Siddhi Gluco Biols Ltd. [2011 (8) TMI 187 - CESTAT, AHMEDABAD] and Fibre Bond Industries [2014 (3) TMI 372 - CESTAT MUMBAI]. As such, I hold that appellant is entitled to refund claim on THC services.

As regards refund claim on GTA services, It is rightly submitted by the Ld. Counsel for the Appellant, that it is almost impossible to mention export invoice details on incoming transportation documents, since export des .....

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ignored while granting refund. Once it is not in dispute that Services stand qualified for refund purpose, on the date of claim, and Service Tax was actually paid on specified service pertaining to export activity, in terms of the broad scheme of refund under Notification No. 41/07-ST, refund must be allowed and paid to the exporter. - Decided in favour of appellant. - Appeal No. ST/480/11 - Dated:- 5-3-2015 - Anil Choudhary, Member (J),J. For the Appellant : Shri Saurabh Dixit Adv. For the Res .....

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ce). GTA services (export) and CHA/C&F agency services for export of their goods, and had accordingly filed several refund claims under Notification No. 17/09-ST dt. 7.7.09 readwith Noti 41/07-ST dt. 6.10.07 as amended, towards Service Tax paid on such THC, GTA services (export) and CHA/C&F agency services. 2.1 That vide Order-in-Original dt. 27.8.09, for THC (Port service) refund was rejected on the grounds that service providers were registered under either Business Auxiliary Service/B .....

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denied on services performed prior (4/07 to 9/07) to exemption coming into force or notified for specific categories. Certain refund claim was also denied as time-barred. 2.2 Being aggrieved, the appellant preferred appeal before Commissioner (Appeals), who vide the impugned order:- (i) Upheld rejection of claims for the period 4/2007 to 9/2007, being prior to Notification No.41/07 dated 6/10/2007. (ii) confirmed the rejection of refund claims as time barred save and except for the periods 10/2 .....

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r-in-Original that the appellant have failed to give a declaration, that transport charges for transport of container is exclusively for the purpose of export, and (v) as regards CHA/CFA service, it was held that the claim is correct and allowable, subject to verification directing the lower authority to verify and allow accordingly. Thus, the appeal was allowed in part. Being aggrieved, the appellant is before this Tribunal. 3. Heard both sides and perused records. 4. The Ld. Counsel for the ap .....

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a. On the date of export Noti,41/07-ST was not in force A. On the date of claiming refund, if service category is mentioned in Noti. 41/07-ST, refund must be granted. B. Refund eligibility is to be examined vis-a-vis date of claiming and not date of export 1. East India-Minerals Ltd. 2012(27) STR 18 (Tri-Kolkatta) 2. WNS Global Services (P) Ltd. 2008 (10) STR 273 (Tri-Mumbai) 3. CCE vs. WNS Global Services (P) Ltd. 2011 (22) STR 609 (Bom) Terminal Handling Charges (Port Service) a. Service provi .....

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for refund to exporter C. Notification nowhere stipulates about service provider being registered under specified service category for eligibility of refund. D. So long as nature of service is one of the specified service categories, irrespective of registration category, refund must be granted to the Appellant. 1. Board Circualr no. 112/6/2009-ST dt. 12.3.09 (para VII) 2. CST, Ahmedabad vs. Riddhi Sidhi GlucoBiols Ltd. 2012 (25) STR 180 (T-Amd) 3. Fibre Bond Industries - ST/337/10 4. CCE vs. H .....

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ds out of factory, empty containers are required to be brought to factory and then stuffed and cleared for export. C. Inward movement of container is only for exporting goods and hence, nothing else but in transit movement of container for exports. 1. CCE vs. Sopariwala Exports P. Ltd. - ST/396/2011 2. Choice Sanitaryware Industries, E/196/2007 The appellant accordingly prays for allowing the appeal. 5. The ld. AR for the Revenue reiterated the orders passed by lower authorities. 6. Having consi .....

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duly notified for this purpose, irrespective of the period of export. 6.1 I also observe that this Tribunal in the aforesaid case relied upon the earlier decision of the Tribunal in the case of WNS Global Services P. Ltd. (supra) which was upheld by the Hon'ble Mumbai High Court. This being the settled legal position in this regard, I hold that the denial of refund on this ground is not sustainable and therefore required to be set aside. As a result, refund in this regard becomes admissible .....

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supra) and Fibre Bond Industries (supra). As such, I hold that appellant is entitled to refund claim on THC services. 6.3 As regards refund claim on GTA services, it is the Appellant's case that the impugned order has traversed beyond the scope of show-cause notice as well as Order-in-Original, in bringing out new ground for denial of refund. Be that as it may, the impugned order on one hand allows refund on inward transport of empty container from port/ICD to factory to be further used for .....

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