2016 (5) TMI 941 - AT - Service Tax

Appeal Dismissed Over Claim Conflict, Remanded for Nexus Review

The court dismissed Appeal No. ST/421/11 due to a conflict in the drawback claim but remanded other appeals for further examination of the correlation ... Refund claim - Notification No. 41/2007-ST and 17/2009-ST - Claimed drawback in respect of export of goods and at the same time they have claimed refund under Notification No. 41/2007-ST - period January, 2008 to September, 2008 - Held that:- as per the notification 41/2007 there is a condition that refund claim under this notification was not admissible if the assessee claims the drawback in respect of export of goods. This condition was removed w.e.f. 18/11/2008 therefore the condition of non claiming of drawback was prevailing during the relevant period therefore, the appellant are not entitle for the refund for the relevant period. Refund claim - no co-relation between export of goods and input service - Held that:- prima facie, it appears that co-relation between input service and export goods is clearly established therefore on this ground refund could not have been rejected. However it appears that both the lower authorities have not carefully examined the documents. Refund claim - Technical Testing and Analysis Services - Held that:- the description of the goods and quantity are matching with the service providers invoices. The contract between the appellant and foreign buyer clearly indicates that testing to be carried out through SGS is on record therefore refund was wrongly rejected on these services. Refund claim - Port Services - Held that:- the Circular dated 12/3/2009 and the judgment in the case of Commissioner Vs. Adani Enterprises Ltd [2014 (11) TMI 973 - GUJARAT HIGH COURT] and SRF Ltd Vs. Comm of C. Excise Jaipur-I [2015 (9) TMI 1281 - CESTAT NEW DELHI] support the claim of the appellant therefore it needs to be re-considered by the Adjudicating authority. Refund claim - C&F Services - Held that:- container number/shipping bill number and export invoice number are appearing on the bills of service provider, this is sufficient to establish the nexus between input service and the export goods. Refund claim - Foreign Commission Service - Held that:- refund should not have been rejected only because it is pertaining to the period prior to period of export of service. There is no dispute that foreign commission exclusively related to the export of goods. It is also not in dispute that in respect of same amount of service tax appellant have not claimed refund earlier, therefore the appellant is prima facie entitle for the refund of service tax. Refund claim - Insurance of Storage of goods - Held that:- appellant's submission is that the storage of goods is exclusively for export of goods as they do not have domestic clearance therefore refund on insurance services is prima facie admissible. Refund claim - Storage of Warehousing - the submission of the appellant is that even though the storage expenses is beyond the period of export but the warehouse was taken on rent for the purpose of export only. It is pertinent that this warehouse was taken at Krishnapattam Port only therefore by any stretch of imagination it cannot be said that warehouse was taken for any purpose other than export therefore I am of the view that Storage and warehouse services is admissible. Refund claim - Transportation Services - LRs were not submitted - Held that:- the appellant in their submission shown that RSs are available and they have submitted summary of GTA service tax paid thereon therefore found correct. - Appeal disposed of by way of remand Issues:Refund rejection under Notification No. 41/2007-ST and 17/2009-ST related to various services: Technical Testing and Analysis, Port Services, C & F Services, Foreign Commission, Insurance, Storage & Warehouse, Transportation GTA. Additional ground in Appeal No. ST/421/11 regarding drawback claim during specific periods.Detailed Analysis:1. Refund Rejection under Various Services:- Technical Testing and Analysis: Refund denied due to lack of correlation between testing and export consignment without a written agreement with the customer.- Port Services: Invoices categorized as Business Auxiliary services, not port services, and lack of authorization by the port authority.- C & F Services: Lack of correlation and missing prescribed particulars in the invoice.- Foreign Commission: Refund denied for exports prior to the relevant quarter without relevant documents like a written agreement.- Insurance: Failure to prove insurance policy for export goods.- Storage & Warehouse: Expenses beyond the export period deemed unrelated to goods export.- Transportation GTA: Failure to establish correlation between goods exported and GTA services received.2. Additional Ground in Appeal No. ST/421/11:- Claimed drawback on goods exported during specific periods conflicted with the conditions of Notification No. 41/2007-ST until 7/12/2008.3. Arguments and Findings:- Appellant's Position: Documents were filed with the refund claim, establishing correlation between services and exports.- Technical Testing and Analysis: Nexus between testing and exports established.- Port Services: Services provided in the port deemed as port services.- C & F Services: Correlation established through invoice details.- Foreign Commission: Refund claim timing and TRU letter supported the claim.- Transportation GTA: Details provided in invoices supported the claim.- Storage & Warehouse: Warehouse exclusively for exports, justifying storage expenses.- Adjudicating Authority's Stand: Rejected refund claims based on lack of document submission.- Decision: Dismissed Appeal No. ST/421/11 due to the drawback claim conflict. Remanded other appeals for further examination of the correlation between services and exports.4. Conclusion:The judgment highlighted the importance of establishing a clear nexus between input services and export goods for refund claims. While one appeal was dismissed, others were remanded for a fresh review to ensure proper consideration of the provided documents and the nexus between services and exports. The decision emphasized the need for thorough examination and granting sufficient opportunity for the appellant to support their refund claims.