TMI Blog2015 (9) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... f it is not in accordance with the tax law, as has been provided under Article 265 of the Constitution of India - Decided in favour of assessee. - Appeal No. ST/88031/13 - Final Order No. A/2493/2015-WZB(SMB) - Dated:- 29-6-2015 - Anil Choudhary, Member (J), J. For the Appellant : Shri D H Nadkarni, Adv For the Respondent : Shri B K Iyer, Superintendent (AR) ORDER Per: Anil Choudhary: The appellant, who is manufacturer and exporter of goods is in appeal being aggrieved by the Order-in-Appeal No. RPS/152/NSK/2013 dated 10.5.2013 passed by the Commissioner of Central Excise (Appeals), Nashik, by which the rejection of part of the refund claim relating to services availed in the course of export have been rejected. 2. The issue in this appeal is that the service provider and service receiver both are located in India and they have entered into a contract of service, in which, part of service is rendered in India and the place of removal/Port located in India and the part of the services is discharged at Port of destination and beyond or outside India and Service Tax has been charged in the invoices by the provider, as per the Finance Act, 1994. The second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y port services . From the records, it is evident that the handling charges at destination, inland haulage (import) charges and Documentation fees-at destination are with reference to services provided at foreign ports where recipients of export cargo are located. The fact regarding rendering of these services in the foreign countries is not denied by the appellant also. Section 65(82) of Finance Act, 1994 defines Port service as any service rendered by a port or other port, or any person authorized by such port or other port, in any manner, in relation to a vessel or goods. Section 65(105)(zn) defines any service provided or to be provided to any person, by any other person, in relation to port services in a port, in any manner, as liable to Service Tax. Section 65(81) defines port as having the meaning assigned to it in clause (q) of Section 2 of the Major Port Trusts Act, 1963. Similarly Section 65(76) defines other port as having the meaning assigned to port in clause (4) of Section 3 of the Indian Ports Act, 1908, but does not include the port defined in clause (81). Ports falling within the ambit of Major Port Trusts Act, 1963, are all major ports like Mumbai, Kochi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovider located in India. He further urged that the Revenue may refund the Service Tax paid on services covered under Notification No. 17/2009 and paid to the service provider for availing services in the course of export of their cargo, where the services have been provided up to the place of removal located in India or the deemed place of removal, which is the premises of the buyer in the foreign country located outside India. The appellant further draw my attention to Rule 8 of the Place of Provision of Service Rules, 2012, which has been notified by Notification No. 28/2012-ST dated 20.6.12, wherein Rule 8 provides as follows:- Place of provisions of a service, where the location of the provider of service as well as that of the recipient of service is in the taxable territory, shall be the location of the recipient of service. 4.1 The learned Counsel further states that admittedly both the service provider and service receiver are located in India and as such the whole part of services is deemed to be in India. The learned Counsel further urges that refund has been rejected on the ground that Notification No. 17/2009 provides for refund of Service Tax paid on services a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Counsel that the issue of limitation have not arisen in the facts of their case and no part of refund has been rejected on the ground of unjust enrichment. 4.4 The learned Counsel also relies on the ruling of the Hon'ble Delhi High Court in the case of United New of India Vs. Union of India - 2004 (168) ELT 442 (Del) where in the facts that the petitioner deposited an amount of money with the Revenue on 19-1-1974 in anticipation of payment of duty as it was likely to receive goods, which were dispatched from United Kingdom. The petitioner was anticipating delivery of 69 bales of paper. However, only 51 bales were delivered to the petitioner. Thereafter, the petitioner approached the authority under the Customs Act for issuance of short landing certificate , which was issued to the petitioner only on 11-6-1974. It is on the strength of this certificate that the petitioner submitted an application for refund of the excess amount on 9-9-1974. This application was submitted in respect of 18 bales, which he did not receive and for which short landing certificate was issued by the appropriate authority. There is no dispute with regard to the aforesaid aspects. The application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 226 of the Constitution of India, the same cannot be decided by overriding a law of legal regime. There is no warrant or justification for holding that a stale or belated claim can be granted in a constitutional remedy by ignoring a statutory prescription. The Hon'ble High Court further observed that the issue before it, a claim of refund was under the provisions of Central Excise Act, Section 11B, is part of the Central Excise Act and accordingly rule of limitation applied. Accordingly, the learned AR prays for rejecting the appeal. 6. Having considered the rival contentions, I find that admittedly the claim of refund is not time barred under the provisions of Finance Act or under Section 11B of the Central Excise Act. Hence, the ruling of the Hon'ble Bombay High Court relied upon by the Revenue in the case of Andrew Telecom (supra) has not application in the facts of this case. Secondly, I hold that under the facts and circumstances, Revenue have received the amounts deposited either as tax or deposit, the Revenue is bound to refund the same when a claim have been made under the provisions of the Act in accordance with law. The amount of Service Tax credited ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
