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Khimji Visram & Sons Versus Commissioner of Service Tax, Mumbai-I

2016 (1) TMI 259 - CESTAT MUMBAI

Refund claim - services used for export of goods - Notification No. 41/2007-ST - General Insurance Service, Goods Transport Agency Service, Port Service (Terminal Handling Charges), Custom House Agent Service, Technical Certification & Inspection Service and Storage & Warehousing Service. - nexus of input services on which refund was sought for - Held that:- one or other documents either on the basis of reference of documents or identity of the goods, it clearly establish the correlation between .....

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Ld. Commissioner (Appeals) proceeded only on the ground that conditions prescribed in the Notification were not complied with, but he has not verified other corroborative documents by which nexus is otherwise established. - matter remanded back to the Original Adjudicating Authority to pass a denovo adjudication order considering our above observations. - Appeal No. ST/168/11 & ST/176/11-Mum - Dated:- 5-11-2015 - Mr. P.S. Pruthi, Member (Technical) And Mr. Ramesh Nair, Member (Judic .....

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riod July, 2008 to September, 2008, and refund claim of ₹ 79,27,347/- for the period October, 2007 to June, 2008 was filed on 21-02-2008, 26-05-2008 and 29-08-2008. The refund claims filed under Notification No. 41/2007-ST dated 06-10-2007 in respect of General Insurance Service, Goods Transport Agency Service, Port Service (Terminal Handling Charges), Custom House Agent Service, Technical Certification & Inspection Service and Storage & Warehousing Service. The Adjudicating Author .....

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e (Terminal Handling Charges) - The invoices in respect of this service was not issued by the Port Authority to the Appellant s name whereas the same was issued by CHA who is neither port nor authorized by port. The invoices mention the service as Business Auxiliary Service or Business Support Service or Custom House Agent Service which are not notified under the said notification. (ii) Insurance Service - The appellant is not eligible for refund for the spot insurance, which are for goods store .....

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t the appellant is not satisfied the conditions (i)(a), (b) and (c) i.e. invoice of Custom House Agent does not bear (a) number and date of shipping bill, (b) description of export goods, (c) number and date of export invoice. (v) Technical Certification & Inspection Service - Verification of sample invoices shows, the appellant has not satisfied condition (i) in as much as they have not submitted any written agreement with buyer requiring inspection and certification of said goods. (vi) Sto .....

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respect of Port Service (Terminal Handling Charges), General Insurance Service, Goods Transport Agency Service, Custom House Agent Service, and Storage & Warehousing Service. It is his submission that in respect of Port Service, there is no dispute, that service provided by the port authorities but the bills were raised by the port authority to Custom House Agent/ Shipping Line Agent/ Clearing & Forwarding Agent etc on the behalf of the exporters and in turn these agencies raised bills .....

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that the documents issued by insurer, including reinsurer for payment of insurance premium are specific to export goods and are in the name of exporter. Therefore, there is a direct correlation of export with the insurance policy. Regarding Goods Transport Agency Service he submits that the charge for non-compliance of condition is procedural, however the Goods Transport Agency Service used for transportation of export goods are not in dispute therefore the refund should not be rejected. He pla .....

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it of refund could not have been denied. He further submits that the lower authorities rejected the refund claim in respect of Storage and Warehouse Service for non-fulfillment of condition (i) and (ii). He submits that the Storage & Warehouse Service used only for export goods. The correlation of export goods with input services can be easily established on the basis of documents such as export invoice, shipping bill, bill of lading and input service provider s invoice etc. Therefore merely .....

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v R. Nair, Ld. Examiner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that the Ld. Commissioner (Appeals) has upheld the rejection of refund claim on the observation that the appellant have not complied with conditions prescribed for each of the service on which refund claim was sought for. He submits that the refund is governed under Notification No. 41/2007-ST subject to conditions prescribed therein. If the conditions are not complie .....

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und was rejected only on the ground that conditions prescribed in the Notification were not complied with. 6.1 As regard Port Service, refund was rejected on the ground that the invoice was not issued either by the port authorities or their agent. Therefore, on the invoices issued other than the said persons refund in not admissible. We do not agree with this ground alone for the reason that it is an admitted general practice that in respect of Port Services, the port authorities issue invoices .....

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