TMI Blog2017 (9) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... of port service as amended, "that all services provided entirely within the port premises would fall under these services". Thus, any service rendered within the port premises could be treated as port service - Further CBEC Circular No.120/01/2010-ST dated 19.01.2010, in respect of refund of Cenvat Credit of Service Tax to exporter, it is clarified that for the eligibility of refund, the nexus between inputs or input service and the final goods/services has to be loser. There is no requirement of one to one co-relation between inputs and outputs. As the benefit of C.B.E. & C. Circular dated 19-10-2010 and relied upon case laws were not available before the adjudicating authority, the matter is remanded back to the Adjudicating authority to decide the matter on the basis of chartered Accountant’s certificate to establish the co-relation required under N/N. 41/2007-S.T. - appeal allowed by way of remand. - ST/41, 42, 198, 199, 204, 248, 249 & 250/10 - FO/75162-169/2017 - Dated:- 24-2-2017 - Shri P.K. Choudhary, Member(Judicial) Shri J. Mohanty, Advocate for the Party Shri S.S. Chattopadhyay, Supdt.(AR) for the Revenue ORDER Per: Shri P.K. Choudhary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incurred but are only questioning the charge having not been incurred close to the shipment date, which does not stand to reason. Accordingly the refund of the Service Tax on Port Charges reflected in the both the orders and rejected are to be held as admissible. In the Order-in-Appeal No.22-24/ST/B-11/2010 dated 26.03.2010, where Commissioner(Appeals) observed as under :- 5. The order itself states that the services such Handling/shifting of export cargo, Haulage, etc. have been rendered within the port prohibited area and once these services are provided either in relation to a vessel or goods and Service Tax has been billed and consequently paid by the exporter, there is no ground to deny the refund of Service Tax so paid on the ground that the services are not linked to any exported goods. The Notification 41/2007-ST/ vide column (4) to the corresponding entry (2) in the Schedule also does not prescribe any condition to be fulfilled by the exporter claiming refund of Service Tax in respect of Port Service , unlike say, the case of GTA Service which required mention of vehicle No. and Shipping bill details. As seen, the relevant bills are raised by the Kolkata Port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is well-settled that in the Cenvat Scheme there is no requirement to establish a one to one relation between the goods/service and goods exported from amongst the mass of goods. It is noted that the definition of port service is very wide. I find that CBEC Circular DOF No.334/1/2010-TRU dated 26.02.2010, gave clarity in respect of alteration and expansion in the scope of existing services and other significant changes in the Finance Act, 1994 in respect of services provided at the port. In order to remove difficulties, it is clarified that the definition of port service as amended, that all services provided entirely within the port premises would fall under these services . Thus, any service rendered within the port premises could be treated as port service. 6. Further CBEC Circular No.120/01/2010-ST dated 19.01.2010, in respect of refund of Cenvat Credit of Service Tax to exporter, it is clarified that for the eligibility of refund, the nexus between inputs or input service and the final goods/services has to be loser. There is no requirement of one to one co-relation between inputs and outputs. Therefore, I agree with the findings of the Commissioner(Appeals). 7. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. (ii) invoice issued by the exporter in relation to export goods shall indicate the name of the inland container depot or port or airport from where the goods are exported. (iii) details of exporter's invoice relating to export goods are specifically mentioned in the lorry receipt and the corresponding shipping bill. (iv) export shall declare in the refund claim indicating whether such services has been received from the said service provider for purposes other than for export. 9. As per the order, the removal of goods have been effected from Crushing Mines to Haldia Port. It is seen that Notification No.41/2007-ST is an exemption notification which exempts taxable services received by an exporter and used for export of goods . As such these are the only ingredients which are to be verified with reference to the claim and I see no scope for interpreting the 'place of removal' in the context of Central Excise Act as done by the lower authority. There is no requirement in Notification No.41/2007-ST that only a manufacturer' can export so as to read any restricted meaning to place of removal as has sought to be done. In case of export of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further argued that appellant is a regular exporter of iron ore fines and for uninterrupted supply of the said product to the overseas buyer, Kolkata Port Trust has allotted a plot to the appellant for storing the export cargo depending on the demand/supply ratio of the said product in the foreign market. The appellants entered into contract with the overseas buyers for effecting supplies on urgent basis. For meeting the urgent requirement of export of cargo, the appellant transports the goods i.e. iron ore fines from its crushing plant to the plot allotted by the Port Authorities for the purpose of storing. It is the case of the appellant that the Service Tax paid on the GTA services are in relation to the loading of goods in the nominated/designated vessels and this fact has been confirmed by the Adjudicating authority in the adjudication order. 10. Ld. Advocate vehemently argued that the documents enclosed to the refund application, prove beyond any shadow of doubt, that intended purpose of legislation behind Notification No.41/2007-ST dated 06.10.2007 cited (supra) as amended has been substantially fulfilled by the appellant. Therefore, rejection of refund claim in the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case of firms/partnerships) if the amount of refund claimed is less than ₹ 5 lakh in a quarter. In case the refund claim is in excess of ₹ 5 lakh, the declaration should also be certified by the Chartered Accountant who audits the annual accounts of the exporter for the purposes of Companies Act, 1956 (1 of 1956) or the Income Tax Act, 1961 (43 of 1961), as the case may be. The Assistant or Deputy Commissioner may, after verification of the fact that the input credit has been correctly claimed, sanction the refund on the basis of the declaration. In case there is a doubt about the correctness of the claim of Cenvat credit on any service, the undisputed amount may be refunded and the balance claim may be decided after following the dispute settlement process. 14. The respondent has been unable to convince this Bench to take a different view. 15. Though the above clarification was with respect to Notf No.5/2006-C.E. (N.T.) but it clearly conveys that in budget 2009 the scheme under Notf No.41/2007 -S.T. was simplified in Notf No.17/2009-S.T. by providing self certification or Chartered Accountant's certification about co-relation and nexus between input ..... X X X X Extracts X X X X X X X X Extracts X X X X
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