2014 (4) TMI 539 - AT - Service Tax

Rejection of refund claim - Bar of limitation - Commissioner (Appeals) allowed refund claim - Held that - in terms of Clause (e) of para 2 of the Notification No.17/09-ST dt.07.07.09 a manufacturer exporter registered with Central Excise or an exporter not so registered can file the refund claim in the office of Assistant Commissioner/Deputy Commissioner Central Excise having jurisdictional over his factory of manufacture, registered office /head office, as the case may be. When the assessee have their factory at Udyog Vihar, Phase-I, Sector-36 Gurgaon(Haryana)and are a manufacturer exporter, they had correctly filed the refund claim before the Assistant Commissioner/Deputy Commissioner Central Excise, Gurgaon. In any case, if the Assistant Commissioner/Deputy Commissioner Central Excise, Gurgaon was of the view that the refund claim should be filed before the Assistant Commissioner having Jurisdiction over the Registered Office of the assessee, he should have forwarded the claim to that office - Refund filed in time - Decided against Revenue. Lack of co-relation between the service - Held that - since the shipping bills did not mention in the service provider s invoices, attempt should have been made to correlate the service provider s invoices with the shipping bills on the basis of the export invoice numbers. Moreover, when there is provision of self certification and certification regarding availment of the services, in question, has been given by the assessee, the same has to be accepted unless there are serious doubt about the correctness of the same. Terminal Handling and Account Management charges etc - Held that - When service tax by the Jurisdictional Authorities has been charged in respect of these services under the Heading Port Service and Custom House Agent service respectively, the Assistant Commissioner while considering refund claim of assessee under Notification No. 17/09-ST cannot review, the assessment of service tax done by the Jurisdictional Service Tax Authorities - Decided against Revenue.

Issues Involved:
1. Timeliness of the refund claim filing.
2. Correlation between services used and goods exported.
3. Classification of services for tax exemption under Notification No. 17/2009-ST.
4. Documentary evidence for service tax payment.

Detailed Analysis:

1. Timeliness of the Refund Claim Filing:
The primary issue was whether the refund claim for January 2009, amounting to Rs. 1,87,734/-, was filed within the stipulated period. The claim was initially filed on 13.12.09 before the Assistant Commissioner Central Excise Gurgaon but was returned and advised to be filed before the Jurisdictional Assistant Commissioner. The judgment clarified that the claim was indeed filed within the stipulated one-year period from the date of the 'Let Export Order' and that the Assistant Commissioner should have forwarded the claim to the appropriate office rather than returning it. Therefore, the Commissioner (Appeals)'s order treating the claim as filed within the prescribed limitation period was upheld.

2. Correlation Between Services Used and Goods Exported:
The second issue concerned the lack of correlation between the service provider's invoices and the goods exported, as the shipping bills did not mention the service provider's invoices. The judgment emphasized that attempts should have been made to correlate the service provider's invoices with the shipping bills based on the export invoice numbers. The provision for self-certification and certification regarding the availment of services by the assessee was to be accepted unless there were serious doubts about its correctness. Thus, the Commissioner's order on this point was found to be without infirmity.

3. Classification of Services for Tax Exemption:
The third issue involved the classification of services such as Terminal Handling and Account Management charges under 'Port Service' and 'Custom House Agent service' respectively. The judgment stated that when the Jurisdictional Authorities had charged service tax under these headings, the Assistant Commissioner, while considering the refund claim under Notification No. 17/09-ST, could not review the assessment of service tax done by the Jurisdictional Service Tax Authorities. The Commissioner (Appeals)'s order was upheld on this point as well.

4. Documentary Evidence for Service Tax Payment:
For the appeal against the order-in-appeal dated 30.03.12, the Commissioner (Appeals) had dismissed the appeal without considering the submissions regarding the correlation of the service provider's invoices with the shipping bills. The judgment noted that the providers of clearing & forwarding Agents services and CHA services had mentioned the assessee's export invoice numbers in their invoices, making it possible to link these invoices with the shipping bills. The appellant's plea that the name of the ICD was clearly mentioned in the export invoices was also not examined. Additionally, the Board's Circular No B11/1/2002-TRU dated 01.08.2002 clarified that cargo handling services provided by the Port should be treated as 'Port Service'. The judgment found that the Commissioner (Appeals) had not examined these pleas and, therefore, set aside the impugned order upholding the rejection of the refund claim.

Conclusion:
The appeals filed by the Revenue (Appeal No. ST/172-183/2012- CU[DB]) were dismissed, and the appeals filed by the assessee (Appeal Nos: ST/810-811/2012) were allowed. The operative portion of the order was pronounced in the court.

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