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2016 (11) TMI 59 - CESTAT MUMBAI

2016 (11) TMI 59 - CESTAT MUMBAI - TMI - Refund claim - exemption under N/N. 17/2009-ST dated 7/7/2009 - Airport Services - Held that: - the ATF was supplied which was treated as exports during the period July, 2009 to March, 2010 and the Airport services which is input service was received by the appellant during the same period. The Airport service was not covered under exemption notification no. 17/2009-ST dated 7/7/2009. It is important to note that this Notification exempt the services spec .....

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was no exemption provided to Airport service under notification no. 17/2009-ST, the exemption was made applicable to the airport service under notification no. 17/2009-ST only by amending notification no. 37/2010-ST w.e.f. 28/6/2010 i.e. much after the period of refund in the present case of the appellant. Therefore it is clear that exemption to Airport service by way of refund was not available during the period July, 2009 to March, 2010. - Limitation bar - refund pertaining to the period 7 .....

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und claim was filed on 27/7/2010 which is well within the one year therefore refund is not time bar. - Board Circular No. 354/256/2009-TRU dated 1/1/2010 - the same is not dealing with the issue in hand. It does not deal with the issue that even if the input service is not specified in the notification refund can be granted therefore circular will not apply in the facts of the present case. - APPEAL NO. ST/600,601/11 - Order No. A/89997-89998/16/STB - Dated:- 2-9-2016 - Mr Ramesh Nair, Membe .....

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ougput Charges by Mumbai International Airports Authority, under Notification No. 17/2009-ST dated 7/7/2009 is admissible under Sr. No. 18 under Airport Services , which services were used for supply of ATF to foreign aircrafts which is treated as export , in a case where on the date of filing the Refund Claims the said entry at Sr. No. 18 (Airport Service) of Notification No. 17/2009-ST was inserted vide Notification No. 37/2010-ST dated 28/6/2010. The adjudicating authority rejected the refund .....

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ellant is before us. 3. Shri. M.H. Patil, Ld. Counsel with Ms. Padmavati Patil, Advocate appearing on behalf of the appellant submits that appellant supply Aviation Turbine Fuel(ATF) to foreign going aircrafts which amounts to exports of goods. M/s. Mumbai International Airports Pvt Ltd (in short MIAL) facilitates the appellants to supply ATF to the aircrafts and for this purpose MIAL charges Throughput charges to the appellants plus service tax thereon paid under Airport Services . He submits t .....

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on in any airport in respect of the export of goods. The refund claims were rejected on the ground that Airport services were not notified at the time of export of the goods under Notification No. 17/2009-ST during the period July, 2009 to September, 2009. He submits that refund claims were filed on 27/7/2010 and 23/9/2010 at the same time the amended notification was in enforce. According to which the refund of service tax paid on Airport service was admissible. He referred to the Board Circula .....

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ions/judgments:- (a) CBEC Circular No. 112/6/2009-ST dated 12/3/2009 (b) CBEC Circular No. 334/3/2010-TRU dated 1/7/2010 (c) Fomento (Karnataka) Mining Co. pvt ltd Vs. Commissioner [2014-TIOL-1402-CESTAT-MUM] (d) Fazlani Exports Pvt Ltd. Vs. Commissioner [2015-TIOL-1088-CESTAT-MUM] (e) East India Minerals Ltd Vs. Commissioner[2012(27) STR 18(T)] (f) WNS Global Services (P) Ltd Vs. Commissioner[2008(10) STR 273(T)] upheld by Bombay High Court [2011(22) STR 609(Bom)] (g) AIA Engineering Pvt Ltd. V .....

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services provided by them on monthly basis. In other word, MIAL raised its bill for the period 1/7/2009 to 31/7/2009 on 10/8/2009 and only on receiving the bill from MIAL that the appellants could pay service tax on the disputed service for claim under Notification No. 17/2009-ST dated 7/7/2009 as per the condition (c) of the proviso in para 1 of the Notification, the exporter has to pay service tax on specified service to the provider, although exports took place during the period July, 2009 fo .....

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ore refund is not time bar. In this regard Ld. Counsel placed reliance on the judgment of Hon ble Delhi High Court judgment in case of Sony India Pvt ltd[2014(304) ELT 660(Del)]. 4. Shri. S.L. Karoliya, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that refund was rightly rejected on the Airport service received by the appellant for the reason that period of refund is from July, 2009 to March 2010 whereas the Airport se .....

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ices received from the same MIAL for the period December, 2009 to May, 2010 refund was rejected on the ground that at the time of exports of the goods and receipt of the services, Airport service was not eligible for the refund under notification No. 17/2009-ST therefore issue is no more res-integra. 5. We have carefully considered the submissions made by both sides and perused the records. 6.The fact is not much under dispute that the ATF was supplied which was treated as exports during the per .....

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x. Therefore point of time of exemption under notification No. 17/2009-ST is time when services were received and used in export of the goods. In the present case receipt of the service as well as use in the exports of goods have taken place during the July, 2009 to March, 2010, at that material time there was no exemption provided to Airport service under notification no. 17/2009-ST, the exemption was made applicable to the airport service under notification no. 17/2009-ST only by amending noti .....

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of the submissions made by both the sides, we find that the appellant is claiming of the service tax paid on the services rendered by MIAPL to the appellant during the period December 2009 to May 2010 for fueling aircrafts by ATF. It is undisputed that the appellant has loaded the ATF in aircrafts which were on foreign trips. We find that the service tax paid on any service rendered by export of goods were eligible for the refund from the authorities. The said refund was extended by Notification .....

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aid under the category of services provided by Airport authority under Section 65(105)(zzm) were inserted in Notification 17/2009-ST by Notification 37/2010-ST dated 28.06.2010. The arguments of the learned Counsel is that this notification should be read as being effective in the Notification 17/2009-ST from the date it was issued is not acceptable. Notification 17/2009-ST specifically grants refund of tax paid on services provided under the category as per classification as mentioned therein. .....

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