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M/s. Phulchand Exports Pvt. Ltd Versus Commissioner of Service Tax, Division II, Mumbai

2016 (5) TMI 941 - CESTAT MUMBAI

Refund claim - Notification No. 41/2007-ST and 17/2009-ST - Claimed drawback in respect of export of goods and at the same time they have claimed refund under Notification No. 41/2007-ST - period January, 2008 to September, 2008 - Held that:- as per the notification 41/2007 there is a condition that refund claim under this notification was not admissible if the assessee claims the drawback in respect of export of goods. This condition was removed w.e.f. 18/11/2008 therefore the condition of non .....

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Refund claim - Technical Testing and Analysis Services - Held that:- the description of the goods and quantity are matching with the service providers invoices. The contract between the appellant and foreign buyer clearly indicates that testing to be carried out through SGS is on record therefore refund was wrongly rejected on these services. - Refund claim - Port Services - Held that:- the Circular dated 12/3/2009 and the judgment in the case of Commissioner Vs. Adani Enterprises Ltd [2014 .....

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mmission Service - Held that:- refund should not have been rejected only because it is pertaining to the period prior to period of export of service. There is no dispute that foreign commission exclusively related to the export of goods. It is also not in dispute that in respect of same amount of service tax appellant have not claimed refund earlier, therefore the appellant is prima facie entitle for the refund of service tax. - Refund claim - Insurance of Storage of goods - Held that:- appe .....

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tch of imagination it cannot be said that warehouse was taken for any purpose other than export therefore I am of the view that Storage and warehouse services is admissible. - Refund claim - Transportation Services - LRs were not submitted - Held that:- the appellant in their submission shown that RSs are available and they have submitted summary of GTA service tax paid thereon therefore found correct. - Appeal disposed of by way of remand - Appeal No. ST/ 418 TO 421/11 - Order No. A/87533-8 .....

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Refund was rejected on the ground that there is no co-relation between testing done and export consignment and that there is no written agreement with the customer to the said effect. (b) Port Services: Invoices issued are under Business Auxiliary services and not port services and service provider was not authorized by the port authority as a Port Service Provider as per the provisions of the Major Port Trust Act, 1963. Appellant failed to provide that the service provider was authorized by po .....

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amp; Warehouse: Storage expenses are for the period which is beyond the period of exports therefore same is not related to export of goods. (g) Transportation GTA: appellant could not give co-relation between goods exported and GTA services received, LR copies were not enclosed with the claim. Apart from the above common issues, in Appeal No. ST/421/11-Mum, additional ground for rejection of claims is that the appellant have claimed draw back on the goods exported during the period January, 2008 .....

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A. appearing on behalf of the appellant submits that in most of the cases where Adjudicating authority /appellate authority have wrongly observed that documents were not filed. However all the documents were filed alongwith refund claim and copies of the same also placed on record in these appeals therefore both the lower authority have not properly perused the records, hence the rejection of claim is not sustainable on this ground alone. 3.1 As regard the merit of the case, on Technical Testing .....

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e service invoice the description of service mentioned as Business Auxiliary Services the refund cannot be rejected on this ground alone for the reason that services were provided in the port and therefore it is port service. He placed reliance on Circular No. 112/6/2009 dated 12/3/2009 at Sr. No. VII. He also placed reliance upon following judgments. (a) Commissioner Vs. Adani Enterprises Ltd[2014(35) STR 741(Guj)] (b) SRF Ltd Vs. Comm of C. Excise Jaipur-I[2015(40) STR 9810(Tri. Delhi)] 3.4 Re .....

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ould be filed in the subsequent quarter in terms of TRU letter No. 354/256/2009-TRU dated 1/1/2010. Accordingly the refund could not have been rejected on this ground. He also referred sample copy of agreement/challan of service tax payment on the foreign commission. 3.6 Denial of refund on the Transport Services-GTA is on the ground that there is no co-relation between GTA Service with the goods exported in as much as there is no details of export invoices and not specific to goods exported. In .....

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ervices, he submits that warehouse was taken on lease at Krishnapattam Port which is exclusively meant for exports of goods only. Appellant is exporting 100% goods therefore it cannot be inferred that storage expenses was incurred for any purpose other than export of goods therefore service of storage have been consumed for the export purpose only. He submits that the original invoice was submitted alongwith refund however only limited ground in the OIO is that storage is beyond the period of ex .....

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mits that though the condition of non claiming of drawback was removed in the Notification No. 41/2007 w.e.f. 7/12/2008, the same is in clarificatory nature hence it should have effect retrospectively. 4. On the other hand, Shri. Sanjeev R. Nair, Ld. Examiner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that most of the documents were appeared not to have submitted to the Adjudicating authority therefore Adjudicating authority rightly rejecte .....

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t in appeal No. ST/421/11-MUM appellant have admittedly claimed drawback in respect of export of goods and at the same time they have claimed refund under Notification No. 41/2007-ST. This refund pertains to the period January, 2008 to September, 2008. As per the notification 41/2007 there is a condition that refund claim under this notification was not admissible if the assessee claims the drawback in respect of export of goods. This condition was removed w.e.f. 18/11/2008 therefore the conditi .....

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appears that co-relation between input service and export goods is clearly established therefore on this ground refund could not have been rejected. However it appears that both the lower authorities have not carefully examined the documents. 6.2 As regard the Technical Testing and Analysis Services, the description of the goods and quantity are matching with the service providers invoices. The contract between the appellant and foreign buyer clearly indicates that testing to be carried out th .....

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he nexus between input service and the export goods. 6.5 Regarding the foreign commission Service refund should not have been rejected only because it is pertaining to the period prior to period of export of service. There is no dispute that foreign commission exclusively related to the export of goods. It is also not in dispute that in respect of same amount of service tax appellant have not claimed refund earlier, therefore the appellant is prima facie entitle for the refund of service tax. 6. .....

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