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TMI Blog2019 (5) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... directly under Section 2 (20) of the Customs Act, 1962 as well as under the definition of exporter in the Foreign Trade Policy, 2009-14 under Chapter 9.26. The Role of M/s MMTC Ltd. is only like an intermediary because of the restriction imposed in the Foreign Trade Policy Schedule-II, SL. 80 which states that the Manganese Ore can only be exported through MMTC Ltd. The restriction imposed in respect of Manganese Ore is governed by Section 3 of the Import and Export (Control) Act, 1947. The role of M/s MMTC Ltd. in the export of Manganese Ore is a compulsion to be observed by the appellant/assessee and it is not by choice which has led to the present dispute. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... inextricable link between the goods exported and sale of goods by the appellant for export through MMTC. He relied upon various decisions and prayed that the impugned order be set aside. 3. The Ld. D. R. justified the impugned order and submits that the copies of Shipping Bills are in the name of M/s MMTC Ltd. Vishakhapatnam, which indicates that the exporter is not M/s S. K. Sarawagi & Co. Pvt. Ltd., and the BRCs are also in the name of M/s MMTC Ltd. Therefore, it cannot be established that the claimant is the exporter and accordingly, submits that the order impugned may be upheld and the appeal filed by the appellant be dismissed. He states that in the contract between MMTC and M/s S. K. Resources (foreign buyer) it is specifically mentioned that the title of the goods will pass on to MMTC only after it is loaded on the vessel. He also re-iterates the findings of the Commissioner (Appeals) in the impugned order that in view of the definition of 'exporter' under Section 2 (20) of the Customs Act, 1062, the appellant/assessee does not qualify as an exporter. 4. Heard both sides and perused the appeal records. 5. I find that the assessee is in appeal before the Tribunal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure-I above on 24.09.2011 & 26.09.2011, and I find that the said claimant filed the said claim for refund of Service Tax paid on specified taxable service for export vide their letter submitted to this office on 19.03.2012 as detailed in the brief facts for refund of service tax paid on taxable specified services i.e. on Port Service, Technical Testing & Analysis and C&F Services used for the export of goods made on the said date for an amount of ₹ 5,35,094/- including (Education Cess & H. E. Cess which I find has been filed within the stipulated time limit as prescribed in terms of the said notification. I also find that mathematically the amount of claim is in order with the amount of Service Tax mentioned on those invoices. I further find:- : that the said claimant declared that no CENVAT Credit or service tax paid on the specified service used for export of said goods has been taken under the CENVAT Credit Rules, 2004. : that the said claimant have submitted the invoices issued in the name of the exporter duly certified as prescribed in the said notification terms of para 3 (j) & (k) of the said notification. : that the said claimant submitted invoices on which cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince they intend to export Manganese ore from their Mines & the activity of MMTC is only as the Commissioner Agent in respect of such transaction which is also evident from the agreement. : that in the contract between M/s MMTC & the said claimant it is specifically mentioned that M/s MMTC is entering to the contract as S. K. Resources Ltd. on back-to-back basis. M/s MMTC shall not be responsible for any claim or damages in the same which has to be horned by the said claimant. Hence, it is quite imperative from the above that although there is a transfer to the title of goods but the assurance in the quality still rests with the said claimant. : that it is further worth mentioning that in the contract on the question of quality & quantity as well as performance of the contract is to be account of the said claimant M/s MMTC shall not be responsible for any claim/damages of buyer or Vessel owner including non-performance of the said claimant. : that it is explicit enough that it is a back-to-back contract & merely for the purpose of th restriction in the export policy, the exports have been made through MMTC but for all practical reasons the said claimant are the exporter. : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N(S)/11 dated 14.07.2011. All terms and conditions as stipulated in buyers corresponding sale contract No. MMTC/2011- 2012/MN(S)/11 dated 14.07.2011 with M/s S. K. Resources Limited, Hong Kong, unless otherwise agreed upon, apply to this contract. The sellers agree that this purchase contract shall be deemed as cancelled either wholly or partially without any claim or compensation to the sellers if for reason, whatsoever M/s S. K. Resources Limited, Hong Kong, cancel the sale contract with the buyers either wholly or partially. The sellers further agree that this purchase contract shall be deemed to have terminated by mutual agreement and that if for any reasons whatsoever including default by M/s S. K. Resources Limited, Hong Kong, any quality or quantities still remain to be shipped on that date, there shall be not claim for compensation on the buyers. All claims and controversies ansing from non-fulfillment of contract or with regard to quantity, quality etc. of Manganese ore will be settled between the sellers and the foreign buyers through MMTC Ltd. but without any risk and responsibility of MMTC. MMTC is entering into sale contract No. MMTC/2011- 2012/MN(S)11 dated 14.07.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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