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M/s SRF Ltd. Versus C.C.E., Jaipur-I

2015 (9) TMI 1281 - CESTAT NEW DELHI

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 attached to services specified in serial No. 2 of the notification No. 41/2007. How .....

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o 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 information regarding the registration number and details of service provider .....

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, 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 documents being debit notes, refund is not admissible. The issue in all the abov .....

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ort 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 (Appeals) who dismissed the appeal. Aggrieved, the appellant is before the Tribun .....

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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 the description of specific sub - clause of Section 65 (105). Further as per .....

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he 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 refund of service tax claimed by them has been actually paid by the service p .....

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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 in terms of Rule 4A of Service Tax Rules, 1994 and that therefore refund clai .....

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ods (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) of section 65 of the said Act Taxable Services Conditions (1) (2) (3) (4) 2. .....

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ny 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 services of terminal handling charges, bill of lading charges etc, were port servic .....

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n 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 into application the condition contained in the subsequent notification No. .....

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pted 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 under BAS. The Revenue lays thrust on clause (c) of para 1 of notification No .....

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on 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 on the grounds that the taxable services that are not covered under the regis .....

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nt 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 Annexure C of this clarification regarding the amendment sought to be brought .....

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te 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 individual description on the grounds that the previsions Section 65A of Finan .....

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der 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 would fall under these services. Further, specific authorization from the port/ .....

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