Khushi Enterprise VERSUS C.C.E. & S.T.-Daman

Customs, Excise & Service Tax 

Appellate Tribunal West Zonal

Bench At Ahmedabad

 

REGIONAL BENCH-COURT NO. 3

Service Tax Appeal No. 10609 of 2014- DB

(Arising out of OIA-DMN-EXCUS-000-APP-193-13-14 dated 24/10/2013 passed by Commissioner of Central Excise, CUSTOMS (Adjudication)-DAMAN)

 

Khushi Enterprise

VERSUS

C.C.E. & S.T.-Daman

APPEARANCE:

Shri, D. K. Trivedi, Advocate for the Appellant

Shri, R.K. Agarwal, Superintendent (AR) for the Respondent

 

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

Final Order No. A/11403/2023

 

RAMESH NAIR

DATE OF HEARING: 01.06.2023 DATE OF DECISION: 28.06.2023

 

 

In the present appeal the following issues are involved:

 

• In the fact that the service tax payment invoice issued by the service provider in favor of CHA bearing the name of the appellant and subsequently invoiced by CHA to the appellant are valid document for refund of service tax against the export of goods in terms of notification No 41/2012-ST dated 29-06-
• Whether, pre-shipment inspection is an input services and liable for service tax paid thereon is liable to be refunded under notification No. 41/2012 ST

 

2. Shri, Devashish K. Trivedi, Learned Counsel appearing on behalf of the appellant at the outset submits that as regard the first issue that whether the invoices are proper or otherwise, though the invoice was issued by the service provider to the CHA, but the same invoice also bears the name of the appellant which clearly co-relates the service, Service provider and service recipient. There is no dispute about the payment of service tax on the receipt of service by the appellant which is further reinforced on the basis of the invoice raised by the CHA to the appellant showing the same value as shown in the service provider’s invoice, therefore, proper co-relation is established, accordingly even though the invoice was not directly in the name of the appellant, refund cannot be rejected only on this count.
   • As regard the issue that whether pre-shipment inspection is an eligible service for refund, it is the submission that there is no dispute that the pre- shipment inspection is conducted only in respect of the export goods of the appellant therefore use of said service for export of goods is not under dispute accordingly the appellant is entitled for the refund on the pre- shipment inspection service in support of his above submission.
   • He placed reliance on the following Judgments:

 

• Nupur Viniyog  LTD. Vs. Commissioner of CGST & CX, Kolkata South Commissionerate 2022(56) G.S.T.L 17 (Tri.- Kolkata)
• 20Microns  VS. Commissioner Of C.EX. & S.T. Vadodara 2017

(47) S.T.R. 257( Tri.- Ahmd.)

 

• Of C.Ex. Mysore Vs. Chamundi Textiles (Silk Mills) LTD. 2010

 

(20) S.T.R. 219 (Tri.- Bang.)

 

• Commissionerof Sales Tax P. Vs. Auriaya Chamber of Commerce, Allahabad 1986 (25) ELT 867 (SC)
• Meera CESTAT, Chennai 2010 (254) ELT 256 (Mad.)
• Parekh Plast (India) Pvt. Ltd. Vs. Commissioner of Central Excise, Vapi 2012 (25) STR 46 (Tri.-Ahmd.)

 

3. On the other hand Shri, R.K. Agarwal Learned Superintendent (AR) appearing on behalf of the revenue reiterates the findings of the impugned
4. Oncareful consideration of the submission made by the both sides and perusal of record. We find that the lower authorities have rejected the refund claim under Notification No. 41/2012 on the ground that the invoice of service is not in the name of the appellant whereas the same is in the name of CHA. we find that the CHA was appointed by the appellant as their Custom House agent who acts on behalf of the appellant, therefore as authorized person of the appellant, when CHA arranges the service provider for and on behalf of the appellant it cannot be said that the service is not received by the appellant. It is obvious that when the CHA deals with the other service providers whose services are used exclusively for the exporter, in the present case appellant, the invoices of such service providers at times are issued in favor of the CHA subsequently the CHA though bear the service charges but collect the reimbursement from the appellant.
   • In such case the situation is as good as the service provider has provided the services to the appellant which is not under dispute as all the services were usedin relation to export of goods made by the appellant. The sample invoice of service provider issued in the name of CHA is scanned below:

 

 

 

 

• The corresponding CHA invoice against the above invoice is reproduce scanned below:

 

 

 

• From the above invoice it can be seen that, in the service provider’s invoice that is issued by M/s Indev Logistics Pvt. Ltd. the name of appellant is appearing as shipper name and in the corresponding invoice of the 4 Star Enterprises which is the appellant’s CHA is showing the exact amount of M/s Indev Logistics    Ltd.  therefore  the  proper  co-relation  has  been

 

established. Considering both the invoices it is established that the service provider M/s Indev Logistics Pvt. Ltd. has provided services to the appellant M/S Khushi Enterprise. In this fact the service tax paid in respect of the services received and used for export of goods is clearly refundable to the appellant.

• This identical issue has been considered by this tribunal in the case of Chamundi Taxtiles limited wherein the tribunal has held that Cenvat credit cannot be denied to the assessee on the invoice even though raised on the agent of assessee who had discharged liability which would have otherwise being discharged by them. In the case of Chamundi Textiles Ltd. reported in 2011 (217) ELS 37 the tribunal held that even though a document is in the name of another entity but on account of assessee credit cannot be denied on such document. Considering this decision in the case of refund also even though the invoice was raised to the agent of the appellant the refund cannot be rejected as invoice raised to the agent is as good as invoice raised to the appellant being the principle.
• In view of the above decision we are also of the view that even though the invoices issued in the name of the appellant’s agent but the service was undisputedly received and used by the appellant for export of goods and the burden of service tax was born by the appellant the refund is eligible under notification No 41/2012 to the appellant.
• As regard the denial of refund on pre-shipment inspection holding that the same is not input service, we find that all the services which are used for export of goods are input services for the purpose of refund under notification No. 41/2012-ST and there is no dispute that the pre-shipment inspection is indeed used in respect of the appellant’s export goods. This view is supported by the judgment cited by the appellant therefore on this count also refund cannot be  As per our above discussion and

 

findings we are of the considered view that the appellant are entitled for the refund under notification No. 41/2012-ST.

5. Accordingly, the impugned order is set aside. Appeal is allowed, with consequential relief.

 

 

(Pronounced in the open court on 28.06.2023)

(RAMESH NAIR) MEMBER (JUDICIAL)

 

(C L MAHAR) MEMBER (TECHNICAL)