TMI Blog2019 (7) TMI 1465X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent ORDER PER P.K. CHOUDHARY : The facts of the case in brief are that the appellants have exported Manganese Ore. They filed refund claim of ₹ 3,52,220/- under Notification No.17/2009-ST dated 07.07.2009. The appellants have taken a mining lease from the Central Government and the principal product to be exported was manganese ore. The Assistant Commissioner vide the Order-in-Original dated 19.07.2011, sanctioned an amount of ₹ 3,40,347/- and rejected an amount of ₹ 11,873/-. The Department filed an appeal before the lower appellate authority subsequent to the Review Order dated 11.10.2011 on the following grounds : (i) They submitted copies of Shipping Bills, which are in the name of M/s MMTC, MMTC Bhavan, Visakhapatnam, which indicates that 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. D. R. re-iterates 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. 4.1 He states that in view of the contract between MMTC and M/s S. K. Resources (foreign buyer) where it is specifically mentioned that the title of the goods will pass on to MMTC. 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 Customs Act, 1962, the appellant/asseessee does not quality as an exporter. 5. Heard both sides and perused the appeal record. 6. I find that the assessee 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. 104/4/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which I find has been filed within the stipulated time limit as per the rule 2(f) of the said Notification. 2. That the said claimant declared that no CENVAT Credit of service tax paid on the specified service used for export of said goods has been taken under the CENVAT Credit Rules, 2004. 3. That the said claimant has submitted the original article of memorandum of the company (which is lying with this office.). 4. That the said claimant have submitted the invoices issued in the name of the exporter duly certified as prescribed in terms of para 3(j) of the said notification as their claim of ₹ 3,52,220/- is 0.37% of the total FOB value amounting to ₹ 9,53,06508/- . 5. That the said claimant submitted invoices on which certification has been done in terms of para 2(i) of the said notification read with MOF, DOR (TRU) Circular No. 120/01/2010-ST dated 19.01.2010 regarding co-relation and nexus between payment of Service Tax made by them. 6. That all the exports as mentioned above are Third Party Exports have been made through Visakhapatnam Port through MMTC Limited as per the expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tends to export and holds an IEC number, unless otherwise specifically exempted . 15. 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 Commission Agent in respect of such transaction which is also evident from the agreement. 16. 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 responsible for any claim or damages in the same which has to be borne by the said claimant. Hence, it is quite imperative from the above that although there is a transfer to the title of goods but the assurance in the quality still rests with the said claimant. 17. That it is further worth mentioning that in the contract on the question of quality quantity as well as performance of the contract is to be account of the said claimant. M/s MMTC shall not be responsible for any claim/damages of buyer or Vessel owner including non-performance of the said claimant. 18. That it is explicit enough t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable laws of India and general principles of contract law. The Buyers expressly agreed, acknowledges and understands that MMTC is an agent, representative or delegate of the Government of India. It is further understood and agreed that the Government of India is not and shall not be liable for any acts, omissions, commissions, breaches or other wrong arising out of the contract. Accordingly, Buyer hereby expressly waives, releases and foregoes any and all actions or claims including cross claims, implored claims or counter claims against the Government of India arising out of the contract and covenant not to sue the Government of India as to any manner, claim, cause of action or thing whatsoever arising out of or under this agreement. MMTC is entering into this contract on the basis of back to back supplies by M/s S.K.Sarawagi Co. Pvt. Ltd.,1C-1-31, Signature Towers, Level 4, Waltair Uplands, Visaphapatnam- 530003 (A.P.), India. All responsibility of quality/quantity as well as performance of this contract is to the account of M/s S.K.Sarawagi Co. Pvt. Ltd., MMTC shall not be responsible for any claim/damages of buyer and/or vessel owner for any reason what ..... X X X X Extracts X X X X X X X X Extracts X X X X
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