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TMI Blog2019 (7) TMI 1465X X X X Extracts X X X X X X X X Extracts X X X X ..... at M/s S.K.Sarawagi & Company Pvt. Ltd., is not the exporter and there is violation in the provision at Para 1 (a) of the Notification No.17/2009-ST dated 07.07.2009 as amended ; (ii) BRCs. are also in the name of MMTC Ltd.. Therefore, it cannot be established that the claimant is the "Exporter" ; (iii) Since a number of input invoices in the claim, are addressed to M/s S.K.Sarawagi & Company Pvt. Ltd., Visakhapatnam, but nowhere in the adjudication order, it is mentioned that the address of the claimant has been incorporated in the ST-2 Certificate issued by the Service Tax Division III, Kolkata at any point of time and accordingly, the input invoices, which are not addressed to the claimant's registered premises falling under the jurisdiction of Service Tax, Division III, Kolkata, are not fit for sanction of refund. 2. In view of the above discrepancies and grounds of appeal, the Reviewing Commissioner vide his Review Order No.106/Review/Divisional/ST/Kol/11-12 dated 11.10.2011, found that the refund sanctioned by the Assistant Commissioner vide his order dated 19.07.2011, for an amount of Rs. 3,40,347, is erroneous and in contravention of the provisions of Notification. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is in appeal before the Tribunal on the ground that all the conditions are satisfied under Notification No.17/2009-ST dated 07.07.2009 and also the clarification issued by the CBEC, vide Circular No. 104/4/2008 dated 12.05.2008 (Para 4.1) being satisfied by the appellant/assessee and the export was made through M/s MMTC Ltd. which was the statutory provision in the Trade Policy, Schedule-II SL. 80 and the money be realized after the export of the goods. The service tax paid in terms of the services utilized in the export of goods to be claimed as Refund was rightfully sanctioned. I also find that the Role of M/s MMTC Ltd. is as intermediary is only because of the restriction imposed in the Foreign Trade Policy schedule- II, SL. 80 which states that the Manganese Ore to be exported through MMTC Ltd. The restriction imposed in respect of Manganese ore is governed by the Section 3 of the Import and Export (Control) Act, 1947. 7. I also find that the Hon'ble Supreme Court in the case of Daruka & Co. Vs. Union of India as reported in 1999 (110) E.L.T. 419 (S. C.) has held in para-16 as below:- "16. Policies of imports or exports are fashioned not only with reference to interna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isakhapatnam Port through MMTC Limited as per the export policy of canalized items. 7. That the Foreign Trade Policy Schedule-II Sl. No. 80 does not allow Manganese Ore to be directly exported. The relevant portion of the extract of the policy is enumerated below: S. No. Tariff Item HS Code Unit Item Description Export Policy Name of Restriction 80 2602 00 Kg. Manganese Ores Excluding the following: Lumpy/blended Manganese Ore with more than 46 present Manganese STE Export through MMTC Ltd. Manganese Ore India Ltd. (MOIL) for manganese Ore produced in MOIL mines. 8. That a Contract is normally made between the foreign buyer & the said claimant. The buyer is identified by the said claimant. MMTC enters into an agreement with the foreign buyer. 9. That the said claimant enters into an agreement with MMTC for a back to back contract. 10. That the Contract with MMTC is that the title to the goods passes to MMTC on FOB ST Basis. 11. That it is explicit enough that port services/ other services have to be performed by different service provider in the name of the said claimant without which it is not possible to transfer the title of goods on FOB ST basis. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pees has been paid to the said claimant. 21. That the amount of Rs. 3,40,347/- as refund of Service Tax paid on taxable specified services provided, as detailed at Annexure 1 to 3 of the brief fact above, I find that services in respect of the said invoices mentioned at the brief fact above 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 the amount of Rs. 11,873/- does not satisfy the condition on the said notification which are liable to be rejected. Therefore, I find that an amount of Rs. 3,40,347/- (Rupees three lakh forty thousand three hundred and forty seven only) claimed by the said claimant is admissible for refund of Service Tax paid on taxable services in terms of the said notification and the amount of Rs. 11,873/- (Rupees eleven thousand eight hundred and seventy three only) is inadmissible in terms of the said notification. Therefore, I, pass the following order." 9. I find from the agreement between M/s MMTC Ltd, and M/s S. K. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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