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TMI Blog2009 (10) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, in which Tribunal has held that Cenvat Credit cannot be denied to a receiver of duty paid inputs, by the Central Excise Authorities having jurisdiction over the input receiver, by revising the assessment of duty at the supplier’s end, held that- the same principle would be applicable to the instant case the service tax refund available to the exporters who have received the taxable services in connection with export of goods, can not be revised. The revenue appeal is to be dismissed. - ST/446, 447 AN]) 583 OF 2009-SM - 1304-1306/2009-SM(BR) - Dated:- 21-10-2009 - RAKESH KUMAR, TECHNICAL MEMBER Sansar Chand B.K. Saxena for the Appellant. A. Upadhyay for the Respon dent. ORDER Rakesh Kumar, Technical Member - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by a Custom House Agent in relation to export of goods section 65(105)(h); (e) Specified clearing services, namely - disinfecting, exterminating, sterilizing or fumigating of containers used for export of goods section 65(1OS)(zzzd). 1.2 The Respondents - M/s. Anant Commodities (P.) Ltd., M/s. Laxmi Solvex Ltd. and M/s. Vipro Exim Ltd., all merchant exporters, exported certain goods and since for the export of goods, the service mentioned in para 1.1 were used, they filed refund claims for amounts of Rs. 5,06,756, Rs. 1,01,111 and Rs. 1,08,153 respectively, out of which, the jurisdictional Assistant/Deputy Commissioner, vide orders-in-original dated 22-12-2008; 15-9-2008 and 23-10-2008, sanctioned the refund of Rs. 21,044, Rs. 88,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and M/s. Vipro Exim Ltd. have filed cross-objections in respect of the appeals by the revenue. 2. Heard both the sides. 2.1 Shri B.K. Saxena, Jt. CDR and Shri Sansar Chand, SDR, the learned Departmental Representatives made the following and as well as written submissions,- (1) The service tax refund has been allowed in respect of "supervisions of container', 'stuffing", "weighment', "sampling and analysis services", "Cargo handling", and "Stevedoring charges', which are not specified for refund in the notification No.41 /07-ST, dated 17-9-2007 and, therefore, the same has been wrongly allowed by the Appellate Authority, (2) The weighment and sampling have not been treated by Hon ble Tnbunal, in a number of cases, as taxable se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which includes the amounts charged for sampling, weighment and supervision of container stuffing. When the Department has accepted the payment of service tax on "Technical Testing and analysis' service on the basis of certain gross amount charged by the service provider, while considering refund of this service tax to the exporter, who had availed their service, the assessment of service tax paid by the service provider cannot be reviewed. (2) Similarly when the Respondent(exporter) availed Custom House Agent(CHA)'s service for export of goods and the CHA had paid service tax on gross amount charged including cargo handling, stevedoring charges etc., while considering refund of service tax to the Respondent, who had availed the services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t's service. Similarly an amount of Rs. 10,815 has been disallowed in respect of 'port service' on the ground that this represent the service tax on the wharfage' which is not part of 'port service'. 3.2 In appeal No. ST/447/07-SM, wherein M/s. Laxmi Solvex Ltd. are the respondents, the respondents exported Soyabeen De-oiled cake for which they used Technical testing and analysis service [ 65(105)(zzh)], GTA service [ 65(I0 and surveyor's service [ 65(105)(zZ)], in respect of which they filed refund claim of Rs. 1,0 1,111 out of which an amount of Rs. 88,998 was sanctioned by the Deputy Commissioner. The revenue seeks to disallow an amount of Rs. 29,435 on the grounds that - (i) Service tax on "Technical testing analysis" service pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 4. Notification No. 41/2007-ST provides for claim of refund by an exporter who had used certain specified services for the export of the goods, subject to the conditions specified in the notification - the service tax whose refund can be claimed by the exporter had been paid by the service provider. hi each of the three appeals of the revenue, it is not the revenue's case that the service provider who had provided the taxable services, in question, to the Respon dents, were not of the categories specified in the notification 41/2007-ST. What the revenue seeks to do as to conduct a detailed review of the service tax payment by the service providers i.e., the Goods Transport Agencies, Ports, CHA, and Technical testing and analyses ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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