TMI Blog2017 (6) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... al handling charges’, ‘wharfage charges’, ‘loading unloading’ and ‘technical testing and analysis’ are not specified in the N/N. 41/2007 - Held that: - matter is covered by the Tribunal’s decision in case of Angiplast Pvt Ltd Vs. CCE [2012 (10) TMI 913 - CESTAT, AHMEDABAD], where it was held that Since, there is no dispute nor there is any record or observation to show that service tax was not paid under the category of Port Service for Terminal Handling Charges and Port Services, admittedly are notified in the N/N. 41/2007-ST, refund is admissible. The appellant is entitled to the refund claim - appeal allowed - decided in favor of appellant. - ST/254/2011-ST[SM] - A/53655-2017-SM[BR] - Dated:- 30-5-2017 - Mr. Ashok K. Arya, (Technic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated the facts and extended the benefit of Notification which is against the provisions of law. He would submit that the first appellate authority has recorded that the respondent should have filed the refund claim for the quarter ended March, 2008 on or before 30.09.2008. Despite such clear-cut finding, the first appellate authority has set aside the impugned order before him. He would submit that it is settled law that conditions of the Notification has to be fulfilled in order to get the benefit of the said notification as decided by the Hon ble Apex Court in the case of M. Ambalal Co. 2010 (260) ELT 487 (S.C.) = 2010-TIOL-111-SC-CUS. 5 . 6. On consideration of submissions made by both sides, we find that there is no dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-December, 2008, the refund claims are within a period of one year from the date of export of the goods. Therefore, the appellant would be eligible for the benefit of refund under the aforesaid Notification subject to satisfaction of other conditions stipulated in the Notification. 5.1 The Hon ble High Court of Bombay, which is the jurisdictional High Court, in the case of Uttam Steel Ltd. (supra) has held that when procedure and practice are amended they have to be amended retrospectively and the benefit allowed if the procedures are satisfied. This Tribunal in the case of Sandoz Polymers Pvt. Ltd. (supra) has also held the same view. Further, the C.B.E. C. in Circular dated 12-3-2009 cited supra, have also held that the so lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Industries Vs CCE, Indore 2017 (51) STR 543 (Tri-Del). In the case of Angiplast Pvt. Ltd. (supra) the Tribunal has been observed as under; 3. Learned AR would submit that Terminal Handling Charges was specifically mentioned when Notification No.17/2009 was issued amending the Notification No.41/2007-S.T. and therefore, decision holding for the earlier period refund is not admissible, is legal and proper. 4. I have considered the submissions made by both sides. I am unable to accept the view that the observations in the order of this Tribunal in the case of Macro Polymers Pvt. Limited did not constitute a ratio as regards eligibility for refund. In fact, I find that this decision was followed by the Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services, it is necessary for the refund sanctioning authority to know under which head service tax has been paid. In the absence of any certificate or evidence produced by the appellants with regard to the actual heading under which this service was classified either service provider, the sanctioning authority could have required the appellants to produce evidence to show the category of service under which service tax has been paid. Neither the appellant nor the Revenue has undertaken this exercise. Therefore, as regards service tax on bill lading charges, the matter is remanded to the original adjudicating authority before whom the appellants may produce evidence to show under which category the payment of service tax has actually been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice Tax has been paid under the head of Technical Testing and Analysis Services. But Revenue is of the view that the services for which such Service Tax payment has been made included container stuffing, weighment, sampling and Rake loading and unloading Analysis services, etc. The view taken by Revenue is that these services are not specified services for allowing refund of Service Tax. I find that Service Tax has been paid by the registered Service provider under the category of Technical Testing and Analysis Services. There is no dispute that Technical Testing and Analysis Services are one of the specified services under the Notification No.17/2009. Since, it is has been collected under subheading and there is no dispute on that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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