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Sanchita Frozen Foods Pvt Ltd Versus Commissioner of Service Tax, Division V, Mumbai

2016 (11) TMI 873 - CESTAT MUMBAI

Rejection of Refund claim - export of services - N/N. 41/2007-ST dated 6/10/2007 - drawback availed - Held that: - as regard the rejection of claim on the ground that the appellant have availed drawback, the lower authority have not considered the amendment vide Notification No. 33/2008 dated 7/12/2008 wherby condition as specified under clause (e) of para 1 has been deleted w.e.f. 7/12/2008 therefore even though the appellant have availed the drawback refund cannot be rejected on this ground. .....

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838/14 - Order No.A/86669-86675/16/SMB - Dated:- 18-3-2016 - Mr Ramesh Nair, Member(Judicial) Shri. V.V. Deo, C.A. for the Appellants Shri. B. Kumar Iyer, Superintend (A.R.) for the Respondent Per : Ramesh Nair The fact of the case is that the appellant filed refund claim in terms of Notification No. 41/2007-ST dated 6/10/2007 on services used for export of goods. The Lower authority sanctioned refund claim partly and rejected part of the refund claim filed by the appellant on one or more of the .....

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Charges was denied on the ground that the service is not covered by the port services, it is not specified services in the notification, the provider of this service deposited the service tax under the head of Business Auxiliary Service or Business Support Service. The Terminal Handling charges specifically eligible w.e.f. 2/7/2009. (e) Refund in respect of Technical testing & Analysis/Testing inspection and Certification services was denied on the ground that there is no co-relation between .....

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of goods. It was also contended that BRCs not submitted, bill was not submitted, services notified vide Notification No. 17/2008 dated 1/4/2008. (h) Refund regarding Banking and Financial Services was rejected on the ground that service tax amount is not specified in bank advise and there is no co-relation of service invoices with the export invoices. Aggrieved by the rejection of refund claims on the above ground appellants are in appeal before this Tribunal. 2. Shri. V.V. Deo, Ld. C.A. appear .....

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pto 30/9/2011. W.e.f. 1/10/2011 the appellant started claiming duty drawback under Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. as DEPB was abolished with effect from that date therefore appellant cannot be denied the refund on this count as drawback was claimed only w.e.f. 1/10/2011 whereas the condition of non availment of drawback was deleted w.e.f. 7/12/2008. (b) Regarding the Terminal Handling Charges, it is not correct that invoices were not submitted. The input ser .....

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014 (11) TMI 251 Cestat Delhi] vide final Order No. 54083-54068/14 dated 16/10/2014 wherein it was held that the refund cannot be denied on the ground that service provider are not registered for any particular service. (d) Regarding the objection on Terminal Handling Charges, he submits that the Terminal handling charges is part of port service therefore on terminal handling charges refund cannot be denied. This has been held by the Hon ble Gujarat High Court in case of CCE Vs. AIA Engineering .....

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as deposited the service tax under Business Auxiliary service or Business Support Service, for this reason refund cannot be denied for the reason that it is not significant that under which head service tax was paid but if the services infact are eligible for refund, it cannot be denied as has been held in CCE, Belapur Vs. Pratap Re-Rolling Pvt Ltd. [2014(34) STR 868(Tri. Mumbai)] and CEBAY Systems (India) Pvt Ltd Vs. CCE, Mumbai[2011(21) STR 668(Tri. Mumbai)]. He further submits that for all th .....

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l of plants as set up as per those (MPEDA Act, 1072) and (2) Quality control through testing, analysis and certification, prior to shipment (The Export(Quality control & Inspection) Act, 1963 and as per Section 3 of the said Act prior inspection is mandatory. He submits that documents such as LC s /Export Orders, stipulated prior testing, analysis, inspection & health/sanitary certificate. The relevant LC s are enclosed with the appeal wherein stipulations for TTA+ TIC were made. He furt .....

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s brought back to the town therefore CHA service was not used for export. In this regard, he submits that the said consignment was received back in the factory for packing deficiency which was rectified and same consignment was exported vide three invoices. The appellant submitted BRC, copy of bill before both the lower stages. Regarding the notification of service w.e.f. 1/4/2008, it is his submission that all the service are pertaining to the period after 1/4/2008 therefore there cannot be any .....

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t documents are not available therefore lower authority has rejected the claim just for sake of rejection therefore the order of rejection cannot be sustained. 4. Shri. B. Kumar Iyer, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that appellant has availed drawback therefore they are not eligible for the refund under notification No. 41/2007 in light of the judgment in case of Rajasthan Textile Mills Vs. Commissioner of Cen .....

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on No. 41/2007-ST. 4. I have carefully considered the submissions made by both sides and perused the record. 5. I find that as regard the rejection of claim on the ground that the appellant have availed drawback, the lower authority have not considered the amendment vide Notification No. 33/2008 dated 7/12/2008 wherby condition as specified under clause (e) of para 1 has been deleted w.e.f. 7/12/2008 therefore even though the appellant have availed the drawback refund cannot be rejected on this .....

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n input service and output export service. 5.3 As regard the Technical testing and Analysis/Technical inspection certification services, I agree with the submission of the Ld. Counsel that their export goods is perishable food products for which the quality control is one of the prime requirement for production and export of goods therefore input service related to technical testing and analysis/testing inspection certification service are eligible for the refund. In respect of export goods, the .....

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