C.S.T.-Service Tax – Ahmedabad VERSUS  Saurashtra Fuels Pvt Ltd

Service Tax Appeal No. 110 of 2012

(Arising out of OIA-310/2011/STC/KANPAZHAKAN/COMMR-A-/AHD dated 09/12/2011 passed by Commissioner of Service Tax– AHMEDABAD)

 

C.S.T.-Service Tax – Ahmedabad

VERSUS 

Saurashtra Fuels Pvt Ltd

APPEARANCE:

Shri Vijay G Iyengar, Assistant Commissioner (AR) for the Appellant Shri Hardik Modh, Advocate for the Respondent

CORAM: HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON’BLE MEMBER (TECHNICAL), MR. C.L. MAHAR

 

Final Order No. A/ 10390 /2022

DATE OF HEARING: 13.02.2023 DATE OF DECISION: 03.03.2023

 

 

RAMESH NAIR

 

The brief facts of the case are that the respondent have applied for refund of service tax paid on input services used for export of goods in terms of Notification No. 17/2009- ST dated 07.07.2009. The Adjudicating Authority vide Order-In-Original dated 25.07.2011 rejected the refund claim. Aggrieved by the said Order -in-Original the respondent filed appeal before the Commissioner (Appeals) who allowed the appeal by way of allowing the refund claim. Therefore, the Revenue filed the present appeal.

2. Shri Vijay G Iyengar, Learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the grounds of appeal. He submits that the Respondent have failed to corelate relevant shipping bills with the export invoices.The respondent has not submitted the RCMC certificate from export promotion council along with refund application. He submits that the appellant have claimed refund of service tax paid on water front royalty charges and weigh bridge charges but these services have no nexus to a vessel or goods. Hence these services cannot be classified under port services and also that this services independently too are not specified under the said notification. Similarly, the refund claim in respect of weighment of

 

cargo, inspection/supervision of loading, receiving, stuffing cargo, CSR, CRL test etc are not under the purview of contract/ agreement and also neither covered under testing, inspection and certification services nor specified services under the said notification. Moreover, in some of the invoices of said service provider it was not corelated with export documents and shipping bills. He submits that due to the above reasons the respondent was not entitled for refund. Hence the order-in -appeal deserves to be set aside.

3. Shri Hasit Dave, learned counsel appearing on behalf of the Respondent submits that appellant have submitted all the relevant documents on the basis of which the correlation between thegoods exported with shipping bill invoices and A-1 form has been established the same was not properly considered by the Adjudicating Authority. The same documents were produced before the Commissioner (Appeals)who appreciating those documents rightly satisfied the corelation on the basis of A-1 form. Hence, the charge of the Revenue that the corelation has not been established is incorrect.
   • As regard the non-submission of RCMC Certificate he submits that thereis no export promotion council sponsored by the ministry of commerce for promotion of export of metallurgical coke therefore, requirement of RCMC Certificate is not correct. He submits that regarding classification of port services and technical inspection and certification service, there is no dispute that the respondent have received the services and the invoices for the same has classified the services under port services and technical inspection and certification service. He submits that it is a settled law that classification service cannot be questioned at the recipient end. Hence this objection is also not sustainable. In support of his submission he placed reliance on the following judgments:
     • Unionof India vs. Arihant And Marbles (P) Ltd – 2019 (20) S.T.L 21 (Raj.)
     • KotakGinning & Pressing  Ltd vs. Commr. Of Service Tax, Mumbai – 2018 (14) GSTL 392 ( Tri.- Mumbai)
     • Adani Enterprises Ltd. Vs. Commissioner of C. Ex.& ST., Ahmedabad – 2020 (40) GSTL 468 (Tri. Ahmd)
     • Commissionerof Ex., Indore vs. Anant Commodities Pvt. Ltd. – 2010 (18) STR 214 (Tri.- Del.)
     • MacroPolymers  Ltd. vs. Commissioner of C. Ex., Ahmedabad – 2010 (19) STR 679

 

• Commissionerof Central Excise  AIA Engineering Pvt. Ltd. – 2014

(36) STR 1236 (Guj.)

 

4. We have carefully considered the submission made by both sides and perused the records.We find that the grounds of appeal made by the Revenue have been dealt with in detail by the Learned Commissioner (Appeals). As regard the dispute raised by the revenue regarding corelation of export documents with the export shipping bill, we find that the appellant have submitted all the documents and A1 form before the Adjudicating Authority as well as before the Commissioner (Appeals). the Commissioner (Appeals) on this point discussed in detail that the A1 form bearingthe details of shipping bill on the basis of which the corelation was established. the Commissioner (Appeals) observed that in form A-1 submitted by the respondent they had provided the names of the service provider as per the shipping bill as well as the corresponding service tax invoice. On the perusal of such A1 form, the Commissioner (Appeals) came to the conclusion that the respondent had corelated the shipping bills with the invoices issued by the service provider. In view of this, the objection of the revenue on this ground is not sustainable.
   • As regard the second ground about non submission of RCMC Certificate, it is undisputed position that there was no Export Promotion Councilsponsored by the Ministry of Commerce or the Ministry of Textiles for promotion of export of metallurgical coke, when this be so then there is no need of RCMC certificate for sanction of a refund claim.
   • As regard classification of port services and technicalinspection and certification service the revenue has objected  that looking to the nature of water front royalty charges and weigh bridge charges the same having no nexus to a vessel or goods. Hence the same is not classifiable under the port service. We find that there is no dispute that for these services the Mundra port and SEZ Ltd raised the invoices in the favour of respondent and classifying the same under port services. It is the settled position of law that the classification of service at the recipient end cannot be questioned therefore, the services classified under port service attained finality and the consequential benefit should go to the assessee. Similarly in the case of technical inspection and certification service invoices for various services were raised by M/s. Inspectorate Griffith India Ltd under the service tax head of technical inspection and certification service therefore, it cannot be disputed that the service received by the respondent is different from technical inspection and certification  The Learned Commissioner

 

(Appeals) considering the fact of this case rightly extended the refund to the respondent. We do not find a proper rebuttal by the Revenue on the findings of the Learned Commissioner (Appeals).

• The issues raised by the Department have been considered in the various judgments. In the case of Arihant Tiles and Marbles (P) Ltd (Supra) the Hon’ble Rajasthan High Court allowed the refund under identical Notification No 41/2007-ST wherein it was observed thatthe Tribunal correctly holding that irrespective classification service, if service are provided within port they should qualify as port service for the purpose of benefit of refund. The Hon’ble court held no substantial question of law arose. Consequently the revenue’s appeal was dismissed. In the case of Kotak Ginning & Pressing Indus. Ltd (Supra) considering the Hon’ble Gujarat Judgment in the case of AIA Engineering Pvt. Ltd – 2014 (46) STR 1236 (Guj.) held that service tax paid on input services used for export of goods, discharge of service tax by service provider under category of cargo handlings services is admissible for refund. Similar issue has been considered by this Tribunal in the case of Adani Enterprises Ltd. (Supra). In the case of Macro Polymers Pvt. Ltd(Supra) this Tribunal held that refund under Notification No. 41/2007 is admissible on terminal handling charges even though same is not specified under the notification but for the reason that the said service is provided by the port authority.

5. As per our above discussion and findingand the judgments relied upon by the respondent, we are of the view that the ld. Commissioner (appeals) has passed a very reasoned order by giving proper finding on each issue arising out of the order-in-original therefore, we do not find any infirmity in the impugned order, hence the same is upheld. Revenue’s appeal is dismissed.

(Pronounced in the open court on 03.03.2023 )

 

 

 

RAMESH NAIR MEMBER (JUDICIAL)

 

 

 

 

C.L. MAHAR MEMBER (TECHNICAL)