TMI Blog2016 (7) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus the exemption Notification No. 41/2007-ST is rendered inapplicable in the case of such exports where the appellant claimed drawback under the Drawback Rules. - Decided against the assessee. - Appeal No. ST/329/2010-CU(DB) - Final Order No. 52478/2016 - Dated:- 18-7-2016 - Mr. S. K. Mohanty, Member (Judicial) And Mr. R.K. Singh, Member (Technical) Shri Narendra Singhvi, Advocate for the appellant Shri Yogesh Agarwal, D.R. for the respondent ORDER Per R. K. Singh Appeal has been filed against order-in-appeal dated 3.11.2009 which upheld the order-in-original dated 31.3.2009 in terms of which the refund claim amounting to ₹ 11,18,403/- filed by the appellant in terms of Notification No. 41/2007-ST dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rprises Limited 2014 (35) STR 741 (Guj.) (iii) Khemchand Handicrafts Vs. Commissioner 2016-TIOL-1251-CESTAT-DEL. (iii) The refund related to transportation of empty containers from port to the factory is permitted by CESTAT in the case of Vippy Industries Vs. Commissioner 2013 (32) STR 238 (Tri.-Del.) (iv) The ground for rejection of refund claim of charges recovered by CHA is baseless. The appellant paid various charges to the CHA, including agency charges, buffer yard charges, private movement charges, documentation charges etc. The CHA charged and recovered service tax on the agency charges of which refund was claimed by the appellant. However, the impugned proceedings rejected the refund claim on the ground that the buffer yard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board s Circular No. 19/2006-Cus. dated 13.7.2006 in this regard to assert that with effect from 13.7.2006, drawback rates also take into account the incidence of service tax paid on taxable services which are used as input services in the manufacturing or processing of export goods in terms of Rule 3(2)(ea) of Drawback Rules. It also cited Section 93A read with Section 94(2)(hh) of the Finance Act, 1994 which empowers the Central Government to grant rebate and frame rules to provide for rebate of service tax paid or payable on the taxable services used as input services in the manufacturing or processing of goods exported out of India. (viii) That the condition No. (e) was omitted from the notification vide Notification No. 41/2007 sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wback Rules, 1995 . This issue came up for consideration of CESTAT in the case of Bharat Art and Crafts (supra) in which CESTAT analysed an issue and observed as under : 2. As regards the appeals of M/s Bharat Arts Crafts and M/s Bothra International are concerned, ld. Consultant for the appellant concedes that they exported goods under claim of drawback under Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 but contended that drawback did not include the service tax paid on the impugned input services because as per the Drawback Rules, the average amount of tax paid on taxable services which are used as input services for the manufacturing or processing or for containing or packing the export goods are taken i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not included in fixing the all industry rates of drawback was true then there was no need to incorporate the said proviso in Notification No. 41/2007-ST as the said proviso would in that case be redundant. There is natural presumption that legislature would not incorporate redundant provisions in law. Further if the said proviso did not affect that eligibility of the exporters for refund under Notification No. 41/2007-ST then there was no need for the Govt. to delete the said proviso vide Notification No. 33/2008-ST dated 7.12.2008. There is nothing in Notification No. 33/2008-ST dated 7.12.2008 which expressly or impliedly gave it retrospective effect. It is thus clear that when the goods were exported under claim of drawback, the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing of goods exported out of India under Section 93A. Needless of say that in the present case rule making power of the Central Government is not an issue (the issue here is only interpretation of an exemption notification No. 41/2007-ST) although it may be added that sub-section 2 of Section 94 clearly states that what is stated in sub section 2 is without prejudice to generality of the power to make rules for carrying out the provisions of this Chapter under Section 94(1). As stated earlier the only issue involved in this case is interpretation of exemption notification and Supreme Court in the case of CC Vs. Honda Siel 2015 (323) ELT 644 (SC) clearly held that it is trite that exemption notifications are to be construed strictly and eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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