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TMI Blog2014 (4) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... nue. Lack of co-relation between the service - Held that:- since the shipping bills did not mention in the service provider s invoices, attempt should have been made to correlate the service provider’s invoices with the shipping bills on the basis of the export invoice numbers. Moreover, when there is provision of self certification and certification regarding availment of the services, in question, has been given by the assessee, the same has to be accepted unless there are serious doubt about the correctness of the same. Terminal Handling and Account Management charges etc - Held that:- When service tax by the Jurisdictional Authorities has been charged in respect of these services under the Heading ‘Port Service’ and ‘Custom House Agent service’ respectively, the Assistant Commissioner while considering refund claim of assessee under Notification No. 17/09-ST cannot review, the assessment of service tax done by the Jurisdictional Service Tax Authorities - Decided against Revenue. - Appeal Nos. 172-183 of 2012, Appeal Nos. 810-811 of 2012 - FINAL ORDER NO: 51424-51437/2014 - Dated:- 27-2-2014 - Mr. G.Raghuram and Mr. Rakesh Kumar, JJ. For the Appellant : Sh. Nupur M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re disposed of by a common order-in-appeal dated 01/11/11 by which the Commissioner (Appeals) held that the impugned orders to the extent of rejecting the claims are not sustainable in law and accordingly, to that extent, the Assistant Commissioners orders, were set aside. Against this order of the Commissioner (Appeals), these 12 appeals have been filed by the Revenue. 1.2 The Assistant Commissioner, Central Excise Division III, Gurgaon, by two separate orders rejected the refund claims of Rs. 1,62,738/- and Rs. 1,60,840/- filed by the Appellant M/s Orient Craft Limited for the period from October 2009 to December 2009 and January 2010 to March 2010 respectively. These refund claims had also been filed in terms of Notification No. 17/2009-ST and the same had been rejected on the grounds that - (a) the documents evidencing the payment of service tax were not enclosed along with the claims and only a chart had been submitted which shows the cheque number only and does not show the evidence of payment of service tax; (b) most of the service provider invoices did not contain their service tax registration number and the invoices had been raised on addresses other than those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shipping bill numbers, that certain services like Terminal Handling and Account Management fee collected by the Custom House Agents (CHAs), are not the specified service and hence not eligible for refund and that in view of the above, the impugned order permitting the refund claim is not correct. As regards the Commissioner (Appeals) s order dt. 30.03.12 against which the assessee has filed an appeal ST/810-811/2012, he pleaded that the Commissioner (Appeals) has correctly upheld rejection of the refund claims, as in some cases documentary evidence of the payment of service tax in respect of the service received has not been provided and in other cases, the invoices do not contain the requisite details. He, therefore, pleaded that there is no infirmity in the impugned order in appeal dt. 30.03.12 passed by the Commissioner (Appeals). 4. Sh. A.K. Jain, Consultant, representing the Appellant M/s. Orient Craft Limited, in all these appeals, pleaded that so far as the impugned order-in-appeal dt.01.11.11 passed by the CCE(Appeals) is concerned, there is no infirmity in the impugned order, that refund claim for Jan.09 had been filed within time and just because it was filed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the submissions from both the sides and perused the records. 6. Coming first to the 12 appeals filed by the Revenue against Order-in-appeal dt. 01.11.11 passed by the Commissioner (Appeals) by which 12 orders of the Assistant/Deputy Commissioner rejecting the refund claims of various amounts have been set aside, we find that refund claim for Jan. 09 for an amount of Rs.1,87,734/- had been filed within the stipulated period i.e. within one year from the date of Let Export Order on 13.12.09 before the Assistant Commissioner Central Excise Gurgaon. He, however, returned the claim on 21.01.10 advising the Appellant to file the refund claim before the Assistant Commissioner Central Excise having jurisdictional over their Head Office/Registered Office. In this regard we find that in terms of Clause (e) of para 2 of the Notification No.17/09-ST dt.07.07.09 a manufacturer exporter registered with Central Excise or an exporter not so registered can file the refund claim in the office of Assistant Commissioner/Deputy Commissioner Central Excise having jurisdictional over his factory of manufacture, registered office /head office, as the case may be. When the assessee have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have in their invoices, mentioned the assessee s export invoice numbers in respect of which the service was provided and it is possible to link the service provider s invoices with the shipping bills on the basis of the export invoice numbers, as all the shipping bills mention the export invoice number. As regards the objection that in respect of charges for transportation of the export consignment from container depot to gateway port, the export invoice does not mention the ICD, according to the appellant, the name of the ICD is clearly mentioned but this plea has not been examined at all in the impugned order. As regards the cargo handling service, the appellant plea is that in terms of the Board s Circular No B11/1/2002-TRU dt. 01.08.2002 this service provided by the Port has to be treated as Port Service and accordingly though the service tax has not been paid under Port Service and the same would be eligible for refund. We agree with the pleas of the assessee which have not been examined at all in the impugned order. In view of this the impugned order upholding the rejection of the refund claim is not sustainable and the same is set aside. 10. In view of the above discu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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