2019 (7) TMI 1465 - AT - Service Tax

Refund of Service Tax - N/N. 17/2009-ST dated 07.07.2009 - Export of goods or not - HELD THAT - It is apparent that M/s MMTC Ltd. stands indemnified of all claims, damages etc. of the foreign buyer and/or vessels owner in respect of exports to be made through them and M/s S. K. Sarawagi Co. Pvt. Ltd. (the appellant herein), the owner of the goods, is not allowed to export directly under Section 2 (20) of the Customs Act, 1962 as well as under the definition of exporter in the Foreign Trade Policy, 2009-14 under Chapter 9.26 - The role of M/s MMTC Ltd. in the export of Manganese Ore is a compulsion to be observed by the appellant/assessee and it is not by choice which has led to the present dispute. Refund allowed - appeal allowed - decided in favor of apppellant.

Summary

Issues Involved:
1. Eligibility of the appellant as an exporter under Notification No. 17/2009-ST.
2. Validity of the refund claim sanctioned by the Assistant Commissioner.
3. Compliance with the Foreign Trade Policy and relevant statutory provisions.

Issue-wise Detailed Analysis:

1. Eligibility of the appellant as an exporter under Notification No. 17/2009-ST:
The Department challenged the appellant's status as an exporter, arguing that the Shipping Bills and BRCs were in the name of MMTC Ltd., not the appellant. The appellant contended that they had a mining lease from the Central Government and were responsible for loading the manganese ore onto the vessel, with MMTC acting as an intermediary due to policy restrictions. The Tribunal found that the appellant met the conditions under Notification No. 17/2009-ST and the CBEC Circular No. 104/4/2008, as the export was made through MMTC Ltd. due to statutory requirements. The Tribunal also noted that the appellant was the owner of the goods and satisfied the definition of an exporter under Section 2(20) of the Customs Act, 1962, and Chapter 9.26 of the Foreign Trade Policy, 2009-14.

2. Validity of the refund claim sanctioned by the Assistant Commissioner:
The Assistant Commissioner had sanctioned a refund of ?3,40,347/- and rejected ?11,873/-. The Reviewing Commissioner found this sanction erroneous, but the Tribunal upheld the Assistant Commissioner's decision. The Tribunal emphasized that the appellant had filed the refund claim within the stipulated time, declared no CENVAT credit was taken, and provided all necessary documentation. The Tribunal also highlighted that the services used for export were taxable specified services, fulfilling the conditions of the notification.

3. Compliance with the Foreign Trade Policy and relevant statutory provisions:
The Tribunal noted that the Foreign Trade Policy Schedule-II SL No. 80 mandated that manganese ore could only be exported through MMTC or MOIL. The appellant's compliance with this policy was not by choice but by compulsion. The Tribunal referred to the Supreme Court's decision in Daruka & Co. Vs. Union of India, which supported the government's economic policies, including channelized exports through selected agencies. The Tribunal found that the appellant's role as an exporter was justified, as they were the owners of the goods and responsible for their quality and quantity, with MMTC merely acting as an intermediary.

Conclusion:
The Tribunal concluded that the appellant satisfied all conditions under Notification No. 17/2009-ST and relevant statutory provisions. The refund sanctioned by the Assistant Commissioner was upheld, and the appeal filed by the appellant was allowed with consequential benefits. The Tribunal emphasized the appellant's compliance with the Foreign Trade Policy and their rightful status as an exporter. The impugned order by the lower appellate authority was set aside.