2017 (5) TMI 1343 - AT - Service Tax

Refund claim - N/N. 41/2007-ST dated 06.10.2007 - Terminal Handling Charges - denial on the ground that this is not a port service - Held that - the issue has already been settled by the Hon ble Gujarat High Court in the case of AIA Engineering Pvt. Ltd. 2015 (1) TMI 1044 - GUJARAT HIGH COURT wherein it has been held that Terminal Handling Charges are covered under port service - refund allowed. Goods Transport Agency Service - denial on the ground that the transportation charges has been paid to and fro to the port of export - Held that - it is merely allegation that the transportation charges has been paid by the appellant to and fro from their factory but no evidence has been produced by the Revenue on record and the appellant has explained that the transportation charges paid by them for transportation of goods from their factory to the export of goods - refund allowed. Time limitation - scope of SCN - Held that - issue of time barred and the appellant has claimed drawback, were not raised in the SCN, therefore, the observations made by the lower authority is beyond the scope of SCN, which are not maintainable. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection under Notification No. 41/2007-ST for Terminal Handling Charges and Goods Transport Agency Service; Entitlement to claim refund on Terminal Handling Charges; Entitlement to claim refund on Goods Transport Agency Service; Allegations of transportation charges payment to and fro to the port of export; Time-barred refund claim and claimed drawback.

Analysis:
The appellant appealed against the rejection of the refund claim under Notification No. 41/2007-ST for Terminal Handling Charges and Goods Transport Agency Service. The appellant contended that Terminal Handling Charges are covered under port service based on a previous ruling and thus eligible for a refund. The issue of Terminal Handling Charges was settled by the Hon'ble Gujarat High Court, affirming that such charges fall under port service, allowing the appellant to claim a refund. Similarly, regarding Goods Transport Agency Service charges, the appellant argued that they only paid for transportation from their factory to the port, not to and fro to the export port, as alleged. The lack of evidence from the Revenue to support the claim that transportation charges were paid to and fro led to the appellant being entitled to a refund under Notification No. 41/2007-ST.

During the hearing, the appellant's counsel referenced a previous case where the appellant was allowed a refund for Goods Transport Agency Service charges due to the absence of evidence supporting the Revenue's claim. The judge found the Revenue's allegations unsubstantiated and ruled in favor of the appellant, granting them the refund claim. Additionally, the issue of the claim being time-barred and the appellant claiming drawback was deemed beyond the scope of the show cause notice, rendering the lower authority's observations irrelevant. Consequently, the judge held that the appellant was entitled to the refund claim under Notification No. 41/2007-ST, allowing the appeal and ruling in favor of the appellant.