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M/s Ashi Creations Pvt. Ltd. Versus CST, Delhi - II

2016 (5) TMI 86 - CESTAT NEW DELHI

Refund claim - Service tax paid on technical, inspection and certification service in respect of services utilized for export of the goods - Notification No. 17/2009-ST dated 09/7/2009 - Held that:- the invoice as also the shipping bills raised by the appellant were available at the time of raising of the bill by M/s Threads Incorporation Buying Services and could have been very well mentioned in the said invoice. However, the same was not referred in the bill for the services, for the reasons b .....

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es that in the absence of any co-relation and linkage with the services and with the export of the goods, the refund cannot be granted in terms of Notification No. 17/2009-ST. - Also the appellant interpolated the said bill raised by M/s Threads Incorporation Buying Services by introducing their invoice has alongwith the shipping bills, which in any case were available even at the time of issuance of the invoice but were not mentioned therein. This act of the appellant clearly is a malafide .....

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respect of which goods the said certification /inspection was done. - As rightly observed by Commissioner (Appeals) that such a certificate can be used for filling up the gaps or as a corroborative material and cannot be made the sole basis for grant of relief to the assessee, especially when there is no such references either in relation to the kind of the goods, the date of inspection and the place of inspection or to any other documentary evidences to show that the said inspection was i .....

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DHWA :- All the 4 appeals are being disposed of by a common order as the issue involved is same. 2. After hearing both the sides, duly represented by Shri R.S. Sharma, Advocate for the appellant and Shri Ranjan Khanna, DR for the Revenue, we find that the appellant is an exporter of readymade garments. He filed refund claim for refund of service tax paid in respect of services utilized for export of the goods, in terms of Notification No. 17/2009-ST dated 09/7/2009. The dispute in the present ap .....

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said notification. The appellants, while claiming the refund of the service tax paid to one such agency M/s Threads Incorporation Buying Services, produced their bills before the original Adjudicating Authority. However, the original Adjudicating Authority rejected the refund claim, after scrutinizing the said bills as produced by the appellant, on the ground that there is nothing in the invoices issued by the inspection agencies to show or to prove that their services were used for the purpose .....

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e Appellate Authority the appellant produced copies of the invoices which contained the invoice number as also the shipping bill number issued by the present appellants. After observing that the said invoices of the inspection agencies had linkage with the invoices and shipping bills issued by the present assessee, the Commissioner (Appeals) wondered as to why the Assistant Commissioner has observed that there was no such linkage in the invoices. Accordingly, he called for a report from the Assi .....

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nce the assessees case, in the absence of any particulars in the original invoices submitted at the time of filing of refund claim. He accordingly rejected the appeal. 5. Hence, the present appeal. 6. Learned Advocate appearing for the appellant has not disputed the fact that the original invoice only mentioned fees for inspection services and the particulars as regards the invoices issued by the appellant alongwith the shipping bill numbers were introduced in the bills subsequently. He, howeve .....

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quent interpolation done in the said bill by the appellant mentioned party invoice ACPL/028/2010 SB No. 2318819 dated 15/4/2010 as also the other two invoices and shipping bills dated 15/4/2010. We note that the invoice issued by M/s Threads Incorporation Buying Services is dated 11/5/2010 whereas the invoice and the shipping bills were raised on 15/4/2010. As such, admittedly the invoice as also the shipping bills raised by the appellant were available at the time of raising of the bill by M/s .....

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shell there is nothing in the original invoice so raised by the service provider to link the service of inspection with the export cargo. In such a scenario, we fully agree with the lower Authorities that in the absence of any co-relation and linkage with the services and with the export of the goods, the refund cannot be granted in terms of Notification No. 17/2009-ST. Not only that, we also find that the appellant interpolated the said bill raised by M/s Threads Incorporation Buying Services b .....

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ed the said bills, while filing appeal before Commissioner (Appeals). It is on account of a report received from the Assistant Commissioner that the Appellate Authority found that the documents placed before him are not the correct and the original documents and stands interpolated so as to meet the objections of the Revenue. It is an established fact that the one who comes to the court to seek justice must come with the clean hands. Such an action on the part of the appellant leads us to believ .....

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raised by them was in respect of export goods namely readymade garments which stand further exported by M/s Ashi Creations Pvt. Ltd. Admittedly the said certificate was not produced before the original Adjudicating Authority and was subsequently obtained and placed before Commissioner (Appeals). Apart from the fact that the said certificate is undated, we note that the same relates to the bills raised by M/s Threads Incorporation Buying Services during the period October 2009 to January 2010. T .....

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