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TMI Blog2015 (9) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... er Cenvat credit has been taken by the manufacturer or by him not the manufacturer have separately applied for refund with respect to the same taxes, which the appellants have done in support of its claim. - matter remanded back - adjudicating authority directed to reconsider the claim of refund - Decided iin favor of assessee. - ST/515 and 516/2011-Mum - Final Order Nos. A/1363-1364/2014-WZB/C-IV(SMB) - Dated:- 2-9-2014 - Shri Anil Choudhary, Member (J) Shri Sushanth Murthy, Advocate, for the Appellant. Shri N.N. Parbhudesai, Supdt. (AR), for the Respondent. ORDER The appellant, M/s. Welspun Trading Ltd., which is a merchant exporter, have filed the present appeal against Orders-in-Appeal No. RBT/201/2011 and No. RBT/202/2011 both dated 3-5-2011 passed by the Commissioner of Central Excise (Appeals)-IV, Mumbai-I. The matter relates to rejection of refund claim under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 41/2007-S.T., dated 6-10-2007, the details of which are as follows :- Appeal No. Order-in-Appeal No. date Period of dispute Amount of refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Goods Transport Agency for outward transportation from the place of manufacture to the port of export. It was further pointed out that the invoices of the service provider include the element of Service Tax charged thereon, which has been paid by cheque and accordingly, it is evident that the appellants have actually paid the Service Tax on the input services utilized. So far as payment of Service Tax by the manufacturer is concerned, the same was paid on their behalf and the manufacturer made a declaration in the following terms :- We hereby declare that we have neither availed Cenvat credit on Service Tax paid on Goods Transport Agency outward transportation used for export goods and nor avail in the future . 2.2 It was further stated that the appellants have submitted copy of all shipping bills, invoices and Bills of Lading pertaining to the goods exported and from such document, it is evident that the services were received in relation to goods which have been exported. It is further stated that the appellants have declared in the Form-A1 attached to the refund application that they have maintained all records pertaining to export of the said goods and further un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the claim, it was observed that the appellant should have submitted the required documents at the time of filing the refund claim or at least at the time of personal hearing without which it is not possible to ascertain the admissibility of the claim. As regards the second ground of rejection, under clause 2(a) of the Notification No. 41/2007, it was held that in the Order-in-Original there is clear finding that certain invoices are not in the name of company/appellant, which the appellant could not clarify and as regards the invoices in the name of manufacturer-company (M/s. Welspun Gujarat Stahl Rohren Ltd.), it was found that the refund claim filed by the appellant on the basis of disclaimer certificate issued by the manufacturer is not in order and therefore, the rejection was upheld. 3. Being aggrieved, the appellants are before this Tribunal. The first ground raised by the appellant is that in the case of export, there are several documents starting from purchase order, invoices of the manufacturer, ARE-1, lorry receipt with invoices of the service provider for various services like Goods Transport Agency service, CHA service, etc., invoice of the merchant exporter, ship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ruling of this Tribunal in the case of Jumbo Mining Ltd. v. Commissioner of Central Excise, Hyderabad - 2012 (26) S.T.R. 525 (Tri.-Bang.), where in Jumbo Mining was engaged in mining and export of minerals. The minerals were transported from mining unit to the Seaport by engaging services of transporter and such transported goods were stored in stock yard allotted by seaport to the CHA, who handled the work related to export of the ore of the Jumbo Mining, which have claimed refund in terms of Notification No. 41/2007, which was partly rejected for Service Tax paid on transport charges incurred and Godown rent to which Service Tax was borne by the Jumbo Mining. It was held by this Tribunal that it is not disputed that the goods exported were transported from Jumbo Mining s premises/factory to the Port directly. In view of the peculiar nature of the goods, the entire consignments covered by one Shipping Bill cannot be transported by a single lorry, as an export consignment is in the order of 6000 to 8000 tonnes and requires to be aggregated at the port premises before the shipping documents are prepared. The fact of export is not being disputed. It cannot be the case that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) provides that even where the Service Tax is paid by the manufacturer, who is not the exporter, such taxes on such services utilized in the course of export can be claimed only by the manufacturer or by the exporter if he is also a manufacturer. Thus, where the exporter is not a manufacturer, he only has to satisfy that neither Cenvat credit has been taken by the manufacturer or by him not the manufacturer have separately applied for refund with respect to the same taxes, which the appellants have done in support of its claim. Thus, I allow the appeal by way of remand with direction to the adjudicating authority to reconsider the claim of refund. I further direct to read the Notification No. 41/2007 in support of claim of refund as held in view of my observation hereinabove and in support of the ruling of this Tribunal in the case of Jumbo Mining Ltd. (supra) and I further direct the appellant to appear before the adjudicating authority to seek the date of hearing with all the documents which are in support of the refund claim and adjudicating authority shall pass a speaking order with respect to claim of the refund. 6. The appellant will appear before the adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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