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TMI Blog2013 (8) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in this regard - While such amendments may operate only prospectively to cause liabilities to assessees, in the case of a beneficial Notification like 41/2007-S.T. for granting refund of tax incidence on goods exported, the matter needed to be interpreted more liberally. Revenue cannot be allowed to approbate and reprobate on the same issue though with reference to different parties - The first argument that classification of service cannot be changed in the hands of the recipient by itself was good enough to allow the appeal - there was no reference to the classification in the notification - This appears to be a serious lacuna - But such missing words cannot be supplied by anyone interpreting the provisions - The expression “port se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at these amounts are refundable to them as per provisions of entry at S. No. 2 and S. No. 6 of the Table to the Notification No. 41/2007-S.T. Before recording further submissions in this regard it is necessary to reproduce the relevant portions of the notification as below. In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 40/2007-Service Tax, dated the 17th September, 2007 which was published in the Gazette of India, Extraordinary, vide number G.S.R. 601(E), dated the 17th September, 2007, except as respects things done or omitted to be done before such superses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not make any reference to Column (2) in the Table. So while granting refund under the said exemption it cannot be insisted that the service should fall under the classification indicated in Column (2) of the Table. All what is required is that the services should fit into the description given in Column (3). They contend that there cannot be any dispute that the input services in question where used for exported goods. 7. The next argument is that as per the decision of the Larger Bench of the Tribunal in the case of Western Agencies - 2011 (22) S.T.R. 305 (Tri.-LB) all services rendered within the port area are to be considered as port services classifiable in entry at Section 65(105)(zn). So if the ratio of the said decision is ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be a serious lacuna. But such missing words cannot be supplied by anyone interpreting the provisions. Secondly the description in Column (3) of the Table is Services provided for export of said goods . The expression port services was known to the persons drafting the notification because such expression is used in taxable entry. That has not been used. So the situation has to judged with reference to the expression actually used. Further the Government has amended by Finance Act, 2010 the definitions in Section 65(105)(zn) to cover any service rendered in port area which shows the intention of the Government in this regard. While such amendments may operate only prospectively to cause liabilities to assessees, in the case of a benef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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