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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 ..... in favor of assessee. Refund on the basis of debit notes - Held that:- The documents reveal that they contain all the details as required under Rule 4A of the Service Tax Rules, 1994. The purpose sought to be served by specifying the details that are to be contained in the document issued while rendering service is to provide information regarding the registration number and details of service provider details, details of service recipient, description and value of taxable service, and the service tax payable thereon. If the documents provide these necessary particulars, merely because the documents are debit notes the refund cannot be denied at the end of the service recipient. - rejection of refund is unjustified - Decided in favour of assessee. - ST/829 to 831/2009-Cus(BR) - Final Order No. 52866-52868/2015 - Dated:- 11-9-2015 - Mr. R.K. Singh, Member (Technical) and Ms. Sulekha Beevi C.S., Member (Judicial), JJ. For the Petitioner : Shri Narendra Singvi, Advocate For the Respondent : Smt. Suchitra Sharma, Commissioner (AR) ORDER Per: Sulekha Beevi C.S. 1. The appellants are aggrieved by rejection of refund claim on the ground that the documents i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the refund must be granted if it is otherwise in order. 4. Against this, the Ld. DR reiterated the findings in the impugned order and contented that refund claim of service tax paid on services like Terminal Handling Charges, Bill of Lading fee, Sundry incident Miscellaneous Port expenses is not admissible. Specified services in Serial No.2 of the Notification No. 41/2007 refers to services classified under Section 65(105)(zn). During the relevant period, services provided by a port or any person authorized by a port only would fall into this category. The appellants failed to produce documentary evidence that the impugned services were provided by port or any person authorized by port. It is mandatory on the part of the appellant to produce evidence that the refund of service tax claimed by them has been actually paid by the service providers under the category of port service. That it is the burden of the person who claims benefit of notification to produce evidence that they fulfill the conditions of the notification. Therefore the onus is on the appellant to produce documentary evidence that the service tax on Terminal Handling Charges, Bill of Lading Fee, Sundry Incid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is as under; (zn) to any person, by a port or any person authorized by the port, in relation to port services, in any manner; The amendment brought forth to the definition by the Finance Act, 2010 w.e.f 01.07.2010 is noticed as under; (zn) to any person, by any other person, in relation to port services in a port, in any manner: Provided that the provisions of section 65A shall not apply to any service when the same is rendered wholly within the port;] 5. It is not in dispute that the services involved are connected with the export of goods. So also the fact that appellant has paid service tax to the service provider is also not disputed. According to appellants, the services of terminal handling charges, bill of lading charges etc, were port services availed by the appellant for export of goods. Though in notification No. 41/2007 corresponding to serial No. 2 , the classification of the specified service in column (2) is shown as section 65 (105) (zn) which is the classification of port services, the description of the specified service given in column (3) is shown simply as services provided for export of said goods. The whole confusion lies in this descr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation VII The Service provider providing services to the exporter provides various services. But he has registration of only one service. The refund is being denied on the grounds that the taxable services that are not covered under the registration are not eligible for such refunds. Notification No. 41/2007-S.T. provides exemption by way of refund from specified taxable services used for export of goods. Granting refund to exporters, on taxable services that he receives and uses for export do not require verification of registration certificate of the supplier of service. Therefore, refund should be granted in such cases, if otherwise in order. The procedural violations by the service provider need to be dealt separately, independent of the process of refund. The above clarification issued by the Board throws light to the existence of problems regarding the service provider classifying or paying tax under a particular category of service which may not be covered under the subclasses specified in 41/2007 as is the situation in the present case. The Ld. Counsel for appellant has also placed before us Circular: 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorization to such service providers. The Board in its circular dated 12/03/2009 has clarified that granting refund does not require the verification of registration of service provider and refund can be granted if otherwise in order. The implication of these two clarifications read together, along with the amendment brought forth in the definition of port services, in our view, is that the exporter should not be unduly burdened with a condition to establish that the service provider was registered under port services. The learned counsel for appellant has placed reliance on the judgment in Commissioner vs Adani Enterprises Ltd. 2014(34) STR 741 (Guj) wherein the Hon ble High Court has considered the very same issue and held in favor of the assessee. The said decision squarely covers the issue in the present case the facts being similar. Revenue placed reliance on the decision rendered by CESTAT in Rajasthan Textile Mills Vs Commissioner of Central Excise, Jaipur reported in 2015 (37) STR 410 (Tri-del). The refund claim therein was denied as the appellants had availed drawback also in respect of goods exported by them. Facts being different the said case is distinguishable from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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