2015 (5) TMI 57 - AT - Service Tax

Denial of refund claim - whether the order passed by the Commissioner (Appeals) allowing refund of input services under Notification No. 41/2007 in respect of terminal handling services and Bill of Lading fees is eligible or not - Held that - lower appellate authority has relied on the Board's circular dated 12.3.2009 (Sl. No. VII), which has already been reproduced by the Commissioner (Appeals). I also find that the various Benches of the Tribunal have allowed refund relying on the Board's circular dated 12.3.2009. Further, the Hon'ble Gujarat High Court also in the case of Commissioner Vs. Adani Enterprise (2014 (11) TMI 973 - GUJARAT HIGH COURT) has allowed refund relying on the Board's circular dated 12.3.2009 - Following the same - Decided against Revenue.

Summary

Issues:
1. Eligibility of refund under Notification No. 41/2007 for terminal handling charges and Bill of Lading fees.

Analysis:
The case involved an appeal by the Revenue against an order passed by the Commissioner (Appeals) regarding the eligibility of a refund claimed by the respondents under Notification No. 41/2007 for service tax paid on terminal handling charges and Bill of Lading fees. The adjudicating authority had partially sanctioned the refund, but on appeal, the Commissioner (Appeals) set aside the order and allowed the refund with consequential relief.

The Revenue contended that the respondents were not eligible for the refund as the service provider had not paid service tax under port services, which was the only category eligible for refund under the Notification. The learned AR reiterated this argument, emphasizing that the refund was only allowed for credit on port services, not for other services like terminal handling charges and Bill of Lading fees.

On the other hand, the counsel for the respondent relied on the findings of the Commissioner (Appeals) and cited the Board's Circular No. 112/6/2009-ST, along with various judicial decisions supporting the eligibility of the refund claimed by the respondents. These decisions included Commissioner Vs. Adani Enterprises Ltd., CCE Belapur Vs. Pratap Re-Rolling Pvt. Ltd., and Devarsons Industries P. Ltd. Vs. CCE, Ahmedabad.

After considering the submissions from both sides, the Member (T) analyzed the issue of eligibility for the refund under Notification No. 41/2007 for terminal handling charges and Bill of Lading fees. The Member noted that the Commissioner (Appeals) had relied on the Board's circular dated 12.3.2009, which had been supported by various Tribunal benches and the Gujarat High Court in previous cases. The circular clarified that exporters could claim refunds on taxable services used for export without verification of the service provider's registration certificate.

Based on the precedent set by the Gujarat High Court and the Board's circular, the Member found no infirmity in the order passed by the Commissioner (Appeals). Consequently, the appeal filed by the Revenue was dismissed, upholding the decision to allow the refund claimed by the respondents under Notification No. 41/2007 for terminal handling charges and Bill of Lading fees.