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M/s K. Prashant Enterprises Versus Commissioner of Service Tax, Mumbai

2015 (3) TMI 1160 - CESTAT MUMBAI

Entitlement for refund claim - Courier service, storage and warehousing service and CHA service - Manufacture and export of readymade garments - Service tax paid on taxable services utilized in business of export - Entitled for exemption under Notification No. 41/2007-ST dated 6.10.2007 - Services are specified service availed by the appellant and paid service tax thereon to the service provider - Held that:- the appellant is entitled to refunds of Service Tax as claimed by them in all the four .....

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ransaction of export. The intention of the legislature is not to export the domestic taxes and to encourage export. Therefore, the services have been utilized in the course of export business of the appellant and accordingly, the appellant is entitled for refund. - decided in favour of appellant - Appeal No. ST/35 to 38/11 - Final Order No. A/660-663/2015-WZB/SMB - Dated:- 20-3-2015 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) For the Petitioner : Shri Anil Balani, Advocate For the Respondent : Shri .....

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vided under Notification No. 41/2007-ST dated 6.10.2007. Accordingly for the year 2008, the appellant filed 4 quarterly claims for refund of Service Tax paid by them on taxable services utilized in the business of export. The details of which are as follows: - Sr. No. Order-in-Original & date Period Date of receipt Refund amount 1. Refund/GS/19/10 dt. 15.01.2010 Jan, 08 to Mar, 08 30.5.2008 Rs.41,729/- 2. Refund/GS/20/10 dt. 15.01.2010 Apr, 08 to June, 08 Not mentioned Rs.42,394/- 3. Refund/ .....

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regards Storage and Warehousing services, the Assistant Commissioner observed that the same should have been used exclusively for storage of export goods and the storage or warehouse should be approved by the competent authority. It was found that the warehouse was not exclusively used for storage of export goods neither the appellant provided documentary evidence to prove that the warehouse is approved by the competent authority. Accordingly, the claim was rejected. As regards the CHA services .....

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07-ST dated 6.10.2007, in view of the difficulty faced by the assessees, in availing the exemption by way of refund, amendment and substitution were made time to time as well as the supersession of the notification was also done. The departmental clarification was issued on 17.4.2008, 12.5.2008, 11.12.2008 and 12.3.2008, Notification No. 41/07 was in operation till 6.7.2009 and was superseded by Notification No. 17/09-ST dated 7.7.2009. The said notification is claimed by the department, in its .....

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Thus, the basic criteria for exemption of Service Tax for exporters are : - (i) Services to be specified under the Notification, (ii) Exporter of goods should be registered with Export Promotion Council and Exporters having Import Export Code, (iii) Exporter of the goods have paid the Service Tax thereon to the provider of taxable service. (iv) Such exporter have not claimed CENVAT Credit on such Service Tax paid, and (v) Claim of refund is more than ₹ 500/- or more. 3.1 It is further urge .....

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een rejected only for minor or venial breach, most of which have been liquidated, simplified/modified in subsequent circular/ clarifications. 3.2 As regards the storage and warehousing service, the condition of approval and/or the warehouse has been used exclusively in export of goods have been removed by the Notification No. 52/2011 (para 41, sub para 12) which also stood clarified by Circular No. 112/06/09 dated 12.3.2009. 3.3 As regards CHA service, the same was collected under Port Service .....

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able services used for export of goods. Granting refund to exporters, on taxable services, that he receives and uses for export do not require verification of registration certificate of the supplier of service. Therefore, refund should be granted in such cases, if otherwise in order. The procedural violations by the service provider need to be dealt separately, independent of the process of refund. 3.4 The learned Counsel further points out that both the authorities below have failed to take in .....

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voice/bill as required in the conditions laid down for exemption. Accordingly, it was held that the appellant is not entitled for refund of Service Tax in respect of CHA service. 3.6 As regards the Storage and Warehouse service, the disallowance was confirmed as the learned Commissioner (Appeals) failed to take into notice the subsequent clarifications and dilution of conditions vide clarification dated 12.3.2009 and Notification No. 52/2011. 3.7 In respect of Courier Service, it has been held t .....

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he same are read together, it will be found that the appellant is entitled to refund. The appellant have filed copies of some of the invoices to demonstrate and establish the eligibility. 3.9 As regards the invoice for CHA service is concerned, issued by Kanayasingh & Sons, the CHA is having the registration no. 11/0037. As per bill no. 105 dated 1.11.2008, it is seen that name of the appellant is mentioned therein, number of packages, mode of transport, Port of discharge, shipping bill no., .....

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s mentioned, the consignment no. of courier as well as destination is mentioned, Service Tax duly charged and has been paid, is mentioned in the invoice. Invoice further bears the PAN no. of the service provider - skypack, the IEC code was mentioned by hand at the top left hand of invoice. 3.11 As regards the invoice for Warehouse service issued by Professional Caretaker/HUF, their invoice bear the address of the appellant, bill no. and date of the bill, number of cartons stored, from which date .....

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in denying the exemption and accordingly appeal should be allowed. 3.13 The appellant further relied on the SMC ruling of this Tribunal in the case of Alpine Apparels Vs. Commissioner of Central Excise, Delhi - 2013 (30) STR 687 (Tri-Del), wherein this Tribunal has held that where the invoice of courier agency gives all the details save and except the IEC Code no. of exporter and there is no dispute with regard to the holding of IEC code with importer, the refund cannot be denied. The appellant .....

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availed and export of goods and in view of the policy of the government, not to burden exports with domestic taxes, refund was held to be allowable. 4. The learned AR relies on the impugned order. The learned AR further relies on the Division Bench ruling of this Tribunal in the case of Magsons Exports Vs. Commissioner of Service Tax, Delhi - 2013 (32) STR 22 (Tri-Del), wherein in the case of manufacturer exporter of readymade garments, who claimed benefit under Notification No. 17/2009 and app .....

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