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2021 (9) TMI 1252 - AT - Service TaxRefund of service tax - input services - port services - refund rejected on the ground that the invoices in regard to port services have been issued by M/s. Natvar Parekh Industries and not by the port or any person authorized by the port - N/N. 41/2007-S.T. dated 06.10.2007 - amendment brought forth in the definition of taxable service contained in Section 65(105)(zn) of the Finance Act, 1994 with effect from 01.07.2010 - HELD THAT - It can be seen that prior to 30.06.2010, the definition of Port Services was such that only services rendered by a port or any person authorized by such port would come within the purview of taxable service. However, while giving the description of port services in Notification No. 41/2007-S.T. (supra), this description has not been adopted. The description of taxable services given in the Notification in regard to Port Services is services provided for export of said goods . The requirement that the services have to be provided by a port or any person authorized by the port has been included in the description of port service in the subsequent Notification No. 17/2009-S.T. dated 07.07.2009. The rejection of refund claim is with respect to Service Tax paid on Port Services and not Customs House Agent services. Though the invoice is not issued by the port, as per Sl. No. 2 of the Notification No. 41/2007-S.T., it is not required to establish that the services were rendered by the port or any person authorized by the port during the relevant period and this condition was included only in the subsequent Notification i.e., Notification No. 17/2009-S.T. The issue on merits is held in favour of the assessee - the rejection of refund on Port services cannot sustain - Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Rejection of refund claim pertaining to port services. 2. Validity of invoices issued by CHA (Customs House Agent) for port services. 3. Requirement of service provider registration for specified services under Notification No. 41/2007-S.T. 4. Applicability of subsequent Notification No. 17/2009-S.T. and related amendments. 5. Clarification and procedural guidelines issued by C.B.E.C. Issue-wise Detailed Analysis: 1. Rejection of Refund Claim Pertaining to Port Services: The appellant challenged the rejection of their refund claim for service tax paid on port services. The Tribunal initially applied the decision in M/s. SRF Ltd. v. Commissioner of Central Excise, Jaipur-I, holding the rejection unsustainable because the invoices were issued by M/s. Natvar Parekh Industries and not directly by the port or an authorized person. The High Court remanded the matter to the Tribunal for reconsideration, emphasizing the need for detailed discussion of relevant facts. 2. Validity of Invoices Issued by CHA for Port Services: The appellant argued that their refund claim was rejected on the ground that the CHA was not registered for providing port services. The Show Cause Notice only alleged that the CHA was not registered for the specified services. The Tribunal noted that the description of services in Notification No. 41/2007-S.T. did not require services to be provided by the port or an authorized person, a requirement introduced later in Notification No. 17/2009-S.T. 3. Requirement of Service Provider Registration for Specified Services: The appellant referred to C.B.E.C. Circular No. 112/6/2009-S.T., which clarified that for refund purposes, verifying the registration certificate of the service provider was not necessary. The Tribunal, following the decision in M/s. SRF Ltd., held that procedural violations by the service provider should be dealt with separately and should not affect the refund claim. 4. Applicability of Subsequent Notification No. 17/2009-S.T. and Related Amendments: The Tribunal discussed the changes introduced by Notification No. 17/2009-S.T., which required services to be provided by a port or an authorized person for eligibility. However, since the appellant's claim was under Notification No. 41/2007-S.T., which did not have this requirement, the Tribunal found the rejection of the refund claim unjustified. 5. Clarification and Procedural Guidelines Issued by C.B.E.C.: The Tribunal referred to Circular No. 334/1/2010-TRU, which addressed difficulties faced by taxpayers regarding authorization for service providers within port premises. The Circular clarified that all services within the port would be taxable without needing specific authorization. This supported the appellant's case, as the service provider's classification or registration should not impact the refund eligibility. Conclusion: The Tribunal concluded that the rejection of the refund claim for port services was unsustainable. The decision was based on the interpretation of Notification No. 41/2007-S.T., relevant C.B.E.C. circulars, and precedents like M/s. SRF Ltd. The Tribunal ordered that the rejection of the refund claim be set aside, ruling in favor of the appellant. Order Pronounced: The order was pronounced in the open court on 23.09.2021, setting aside the rejection of the refund claim for port services.
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