Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (9) TMI 1281 - CESTAT NEW DELHI

2015 (9) TMI 1281 - CESTAT NEW DELHI - 2015 (40) S.T.R. 980 (Tri. - Del.) - Refund claim - input services used in export of goods - notification No. 41/2007 - Denial on the ground that the documents issued in respect of services relating to activities at the port of export have not been issued by the port or any person authorized by the port and that the documents being debit notes, refund is not admissible - Held that:- The appellant is correct in submitting that there are no conditions attache .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

not permissible - exporter should not be unduly burdened with a condition to establish that the service provider was registered under port services. - Decided in favor of assessee.

Refund on the basis of debit notes - Held that:- The documents reveal that they contain all the details as required under Rule 4A of the Service Tax Rules, 1994. The purpose sought to be served by specifying the details that are to be contained in the document issued while rendering service is to provide i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

:- 11-9-2015 - Mr. R.K. Singh, Member (Technical) and Ms. Sulekha Beevi C.S., Member (Judicial), JJ. For the Petitioner : Shri Narendra Singvi, Advocate For the Respondent : Smt. Suchitra Sharma, Commissioner (AR) ORDER Per: Sulekha Beevi C.S. 1. The appellants are aggrieved by rejection of refund claim on the ground that the documents issued in respect of services relating to activities at the port of export have not been issued by the port or any person authorized by the port and that the docu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ch as Terminal Handling Charges, Bill of Lading charges etc, availed for export of goods. After adjudication the refund claim was rejected vide order dated 31/10/2008 on two grounds; a) that appellant failed to produce documentary evidence to show that such services are provided by port or persons authorized by port and b) that debit notes issued by service providers are not proper documents in terms of rule 4A of Service Tax Rules, 1994. In appeal, this view was upheld by the Commissioner (Appe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

porter for export of goods. The specified services stated in Serial No.2 of the notification refer to services used for export of goods. There is no condition attached to these services in Column (4). It is the contention of the counsel that the authorities below have rejected the claim giving a go by to the plain and literal interpretation of the notification. The relevant notification for the purposes of the appellants case being notification No. 41/2007, the impugned services need not answer .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eous Port expenses is not admissible. Specified services in Serial No.2 of the Notification No. 41/2007 refers to services classified under Section 65(105)(zn). During the relevant period, services provided by a port or any person authorized by a port only would fall into this category. The appellants failed to produce documentary evidence that the impugned services were provided by port or any person authorized by port. It is mandatory on the part of the appellant to produce evidence that the r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rt service. Commissioner (Appeals) has observed that the service provider of these services has paid service tax under Business Auxiliary services. Though the services may be availed by the appellant in connection with port services, the service provider has classified them as BAS and paid tax under this category which makes the refund inadmissible under the notification. Further appellant had claimed the refund of service tax paid on the strength of debit notes. These are not proper documents i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r carrying on general insurance business in relation to insurance of said goods (i) document issued by the insurer including re-insurer, for payment of insurance premium shall be specific to export goods and shall be in the name of the exporter. 2. Section 65(105)(zn) Services provided for export of said goods - At this juncture, it would also be relevant to notice the subsequent notification No. 17/2009 ST dated 07/07/2009 which is as below: Sl.No. Classification of sub-clauses of clause (105) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nce Act, 2010 w.e.f 01.07.2010 is noticed as under; (zn) to any person, by any other person, in relation to port services in a port, in any manner: Provided that the provisions of section 65A shall not apply to any service when the same is rendered wholly within the port;] 5. It is not in dispute that the services involved are connected with the export of goods. So also the fact that appellant has paid service tax to the service provider is also not disputed. According to appellants, the service .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

iven in column (3). The description of port service given in the notification no.41/2007 is different from the description of port services defined in section 65 (105) (zn). This is clear from the subsequent notification no.17/2009 dated 07.07.2009 which is also reproduced above. But the argument of the counsel that by imposing condition that the appellants should produce documents to establish that services were provided by port or persons authorized by port, the respondents are trying to press .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t answer the description of sub-clause (zn) of section 65(105) is to be accepted then the description of all other services given in column (2) would be redundant. Such an interpretation is not permissible. 6. The objection raised by Revenue is that only if the service provider pays the service tax in respect of services rendered to the appellant under the head port services coming under section 65 (105) (zn), the refund can be allowed. In the present case the service provider has paid the tax u .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed by a port or a person authorized by the port as contained in the definition of section 65 (105) (zn). 7. The Ld. Counsel for appellant has countered these submissions by adverting to the clarification issued by CBEC, vide Circular No. 112/6/2009 - ST, dated 12/03/2009. The same is reproduced as under: S. No. Issue Raised Clarification VII The Service provider providing services to the exporter provides various services. But he has registration of only one service. The refund is being denied o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

al violations by the service provider need to be dealt separately, independent of the process of refund. The above clarification issued by the Board throws light to the existence of problems regarding the service provider classifying or paying tax under a particular category of service which may not be covered under the subclasses specified in 41/2007 as is the situation in the present case. The Ld. Counsel for appellant has also placed before us Circular: 334/1/2010 - TRU dated 26/02/2010. In A .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n within the premises of ports and airports, it would be easier to consolidate all such services under one head. 1.2 It was reported that divergent practices are being followed regarding classification of services being performed within port/airport area. In some places, all services performed in these areas [even those falling within the definition of other taxable services] are being classified under the port/airport services. Elsewhere, individual services are classified according to their in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ort authorities seldom issue authority/permission letters to a service provider authorizing him to undertake a particular task. Many taxpayers have claimed waiver of tax under these services on the ground that the port/airport authority has not specifically authorized them to provide a particular service. 1.4 In order to remove these difficulties, the definitions of the relevant taxable services are being amended to clarify that all services provided entirely within the port/airport premises wou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version