TMI Blog2019 (5) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade Policy, 2009-14 under Chapter 9.26. The Role of M/s MMTC Ltd. is only like an intermediary because of the restriction imposed in the Foreign Trade Policy Schedule-II, SL. 80 which states that the Manganese Ore can only be exported through MMTC Ltd. The restriction imposed in respect of Manganese Ore is governed by Section 3 of the Import and Export (Control) Act, 1947. The role of M/s MMTC Ltd. in the export of Manganese Ore is a compulsion to be observed by the appellant/assessee and it is not by choice which has led to the present dispute. Appeal allowed - decided in favor of appellant. - Appeal No. ST/75842/2018 - FO/A/75515/2019 - Dated:- 30-4-2019 - SHRI P. K. CHOUDHARY, MEMBER (JUDICIAL) Shri L. Santani, Advocate for the Appellant (s) Shri H. S. Abedin, A. C. (AR) for the Respondent(s) ORDER Per Shri P. K. Choudhary: The facts of the case in brief are that the appellants have exported Manganese Ore. The appellant filed refund claim of ₹ 5,35,095/- under Notification No. 52/2011 dated 30.12.2011. The Assistant Commissioner Division-III Service Tax, Kolkata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient evidence from both the contracts i.e. between the appellant and MMTC as well as MMTC and S. K. Resources (Foreign Buyer) that there is an inextricable link between the goods exported and sale of goods by the appellant for export through MMTC. He relied upon various decisions and prayed that the impugned order be set aside. 3. The Ld. D. R. justified the impugned order and submits that the copies of Shipping Bills are in the name of M/s MMTC Ltd. Vishakhapatnam, which indicates that the exporter is not M/s S. K. Sarawagi Co. Pvt. Ltd., and the BRCs are also in the name of M/s MMTC Ltd. Therefore, it cannot be established that the claimant is the exporter and accordingly, submits that the order impugned may be upheld and the appeal filed by the appellant be dismissed. He states that in the contract between MMTC and M/s S. K. Resources (foreign buyer) it is specifically mentioned that the title of the goods will pass on to MMTC only after it is loaded on the vessel. He also re-iterates the findings of the Commissioner (Appeals) in the impugned order that in view of the definition of exporter under Section 2 (20) of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of Service Tax Registration No. AADCS8887RST003 under the jurisdiction of Division-III in support of their instant claim in terms of Notification No. 52/2011-ST dated 30.12.2011 for the exports made thought the specific shipping bills for export as mentioned in the Annexure-I above on 24.09.2011 26.09.2011, and I find that the said claimant filed the said claim for refund of Service Tax paid on specified taxable service for export vide their letter submitted to this office on 19.03.2012 as detailed in the brief facts for refund of service tax paid on taxable specified services i.e. on Port Service, Technical Testing Analysis and C F Services used for the export of goods made on the said date for an amount of ₹ 5,35,094/- including (Education Cess H. E. Cess which I find has been filed within the stipulated time limit as prescribed in terms of the said notification. I also find that mathematically the amount of claim is in order with the amount of Service Tax mentioned on those invoices. I further find:- : that the said claimant declared that no CENVAT Credit or service tax paid on the specified service used for export of said goods has been taken und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to any goods at any time between their entry for export the time when they are exported, includes any owner or any person holding himself out to be the exporter . : that it is seen that the said claimant are the owners of the Manganese Ore, they are entering goods within the port area for the purpose of export and under such circumstances, they are the exporter under the Customs Act, 1962 defined under Section 2 (20). Also as per the definition of Foreign Trade Policy, 2009-14 under Chapter 9.26 it follows that:- 9.26. Exporter means a person who exports or intends to export and holds an IEC number unless otherwise specifically exempted. : that the said claimant satisfies the above criteria since they intend to export Manganese ore from their Mines the activity of MMTC is only as the Commissioner Agent in respect of such transaction which is also evident from the agreement. : that in the contract between M/s MMTC the said claimant it is specifically mentioned that M/s MMTC is entering to the contract as S. K. Resources Ltd. on back-to-back basis. M/s MMTC shall not be responsibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 4,59,422/ is the taxable specified services in terms of the said notification which has been rendered for the export of the said goods for the relevant period of claim and therefore, fulfilled the conditions/requirements of the said notification and the said amount is admissible for refund and therefore I pass the following order:- 8. I find from the agreement between M/s MMTC Ltd, and M/s S. K. Resources Ltd. Dated 14.07.2011 that in article 18 it is revealed as follows:- The buyer s may, at any time, by notice in writing summarily terminate this contract without compensation to the Seller s in the event of insolvency of the sellers/insolvency of any partner of the Sellers/dissolution of the Sellers. It is agreed and understood between the Buyers and the Sellers that purchase contract has been entered into the service the Buyer s corresponding sale contract No. MMTC/2011-2012/MN(S)/11 dated 14.07.2011. All terms and conditions as stipulated in buyers corresponding sale contract No. MMTC/2011- 2012/MN(S)/11 dated 14.07.2011 with M/s S. K. Resources Limited, Hong Kong, unless otherwise agreed upon, apply to this contract. The sellers agree that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
