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TMI Blog2015 (9) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... 7). The refund claim was in respect of services such as Terminal Handling Charges, Bill of Lading charges etc, availed for export of goods. After adjudication the refund claim was rejected vide order dated 31/10/2008 on two grounds; a) that appellant failed to produce documentary evidence to show that such services are provided by port or persons authorized by port and b) that debit notes issued by service providers are not proper documents in terms of rule 4A of Service Tax Rules, 1994. In appeal, this view was upheld by the Commissioner (Appeals) who dismissed the appeal. Aggrieved, the appellant is before the Tribunal. 3. The case of the appellant is that the impugned services are covered under the scope of Notification No. 41/2007 for the purposes of exemption by way of refund. As per the notification taxable services specified in Column (3) of the Schedule are exempted from payment of tax subject to fulfillment of conditions stated in corresponding entry in Column (4) of the Schedule, provided they are received and used by the exporter for export of goods. The specified services stated in Serial No.2 of the notification refer to services used for export of goods. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t therefore refund claim has been rightly rejected. 4. The issue to be analyzed is whether appellants are eligible for refund on the basis of notification No. 41/2007. The relevant portion of the schedule of the said notification is reproduced as under: Sl.No Taxable Services Conditions Classification under Finance Act, 1994 Description (1) (2) (3) (4) 1. Section 65 (105)(d) Services provided to an exporter by an insurer, including a re-insurer carrying on general insurance business in relation to insurance of said goods (i) document issued by the insurer including re-insurer, for payment of insurance premium shall be specific to export goods and shall be in the name of the exporter. 2. Section 65(105)(zn) Services provided for export of said goods - At this juncture, it would also be relevant to notice the subsequent notification No. 17/2009 ST dated 07/07/2009 which is as below: Sl.No. Classification of sub-clauses of clause (105) of section 65 of the said Act Taxable Services Conditions (1) (2) (3) (4) 2. (zn) Service provided by a port of any person authorized by the port in respect of the export of said goods. The definition of port servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther services given in column (2) would be redundant. Such an interpretation is not permissible. 6. The objection raised by Revenue is that only if the service provider pays the service tax in respect of services rendered to the appellant under the head port services coming under section 65 (105) (zn), the refund can be allowed. In the present case the service provider has paid the tax under BAS. The Revenue lays thrust on clause (c) of para 1 of notification No. 41/2007 wherein it is seen stated that in order to claim refund, the exporter claiming the exemption has actually paid the service tax on the specified services. According to Revenue this means that refund is admissible only if the documents evidence payment of service tax for specified service i.e, for port services. That the appellant therefore has to establish that the services for which refund is claimed was provided by a port or a person authorized by the port as contained in the definition of section 65 (105) (zn). 7. The Ld. Counsel for appellant has countered these submissions by adverting to the clarification issued by CBEC, vide Circular No. 112/6/2009 - ST, dated 12/03/2009. The same is reproduced as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phrase any person authorized by port/airport. In many ports/airports there is no procedure of specifically authorizing a service provider to undertake a particular activity. While there may be restriction on entry into such areas and the authorities often issue entry-passes or identity cards, airport/port authorities seldom issue authority/permission letters to a service provider authorizing him to undertake a particular task. Many taxpayers have claimed waiver of tax under these services on the ground that the port/airport authority has not specifically authorized them to provide a particular service. 1.4 In order to remove these difficulties, the definitions of the relevant taxable services are being amended to clarify that all services provided entirely within the port/airport premises would fall under these services. Further, specific authorization from the port/airport authority would now not be a pre-condition for the levy. 8. The above clarification throws light on difficulties faced by exporters to produce documents in accordance with Section 65(105) (zn) as there is no procedure of issuing permission letters or authorization to such service providers. The Board in its c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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