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TMI Blog2016 (11) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... unds. (a) The refund is not admissible if drawback is claimed. (b) Refund in respect of Terminal Handling Charges is not admissible in view that the appellant have not submitted the invoices of input services and corresponding export invoices. (c) Claim of refund on CHA services not admissible as the services are related to out of pocket expenses such as conveyance, fax, telecom Agency etc. which do not fall under the head of CHA Service. (d) Refund in respect of Terminal Handling Charges was denied on the ground that the service is not covered by the port services, it is not specified services in the notification, the provider of this service deposited the service tax under the head of Business Auxiliary Service or Business Support Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The appellant have not claimed any duty drawback in respect of export taken place prior 7/12/2008. He submits that till 30/9/2011 exporter had option to claim either duty drawback or DEPB and appellant had opted for DEPB for all the period upto 30/9/2011. W.e.f. 1/10/2011 the appellant started claiming duty drawback under Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. as DEPB was abolished with effect from that date therefore appellant cannot be denied the refund on this count as drawback was claimed only w.e.f. 1/10/2011 whereas the condition of non availment of drawback was deleted w.e.f. 7/12/2008. (b) Regarding the Terminal Handling Charges, it is not correct that invoices were not submitted. The input service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has deposited the service tax under Business Auxiliary service or Business Support Service, for this reason refund cannot be denied for the reason that it is not significant that under which head service tax was paid but if the services infact are eligible for refund, it cannot be denied as has been held in CCE, Belapur Vs. Pratap Re-Rolling Pvt Ltd. [2014(34) STR 868(Tri. Mumbai)] and CEBAY Systems (India) Pvt Ltd Vs. CCE, Mumbai[2011(21) STR 668(Tri. Mumbai)]. He further submits that for all the export invoices as specified in OIO, Terminal handling charges and other port service plus service tax have been charged in section of bill of lading itself. Copies of such bills of lading have been submitted with refund application. (e) Regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The appellant submitted BRC, copy of bill before both the lower stages. Regarding the notification of service w.e.f. 1/4/2008, it is his submission that all the service are pertaining to the period after 1/4/2008 therefore there cannot be any question about notification of service w.e.f. 1/4/2008. (g) Regarding the banking and financial service, the appellant had submitted the input service invoice and co-relation is established for the reason that banking services availed relates to inward remittance of export proceeds. In view of above submission, it can be seen that the most of the query are unnecessary by the lower authority as on the face of the record, despite having all the documents on record they have contended contrary that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground. 5.1 As regard the Terminal Handling charges, as per the judgment relied upon by the appellant, it is clear that terminal handling charges being part of the port service and since the port service is specified service, refund is admissible. 5.2 As regard the co-relation, Ld. Counsel has clearly submitted and shown the evidences that relevant documents showing co-relation were submitted before both the lower authorities, if it is so, refund cannot be rejected for want of co-relation between input service and output export service. 5.3 As regard the Technical testing and Analysis/Technical inspection certification services, I agree with the submission of the Ld. Counsel that their export goods is perishable food products for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd should be granted. 5.7 In one of the appeal refund of CHA service was disallowed on the ground that CHA has collected amount towards labour, cartridge, conveyance, fax, telecom expenses etc. In this regard the judgment M/s. Suncity Art Exporters (supra) support the claim of the appellant that irrespective of any category of services, it is provided by the CHA refund is admissible therefore ground taken by the lower authority for rejection of refund of CHA service is not correct. 6. In view of the above facts and discussions, I am of prima facia view that appellant is entitle for the refund and same should not have been rejected. However in most of the cases despite availability of the relevant documents, lower authority have rejected t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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