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TMI Blog2021 (9) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... port service in the subsequent Notification No. 17/2009-S.T. dated 07.07.2009. The rejection of refund claim is with respect to Service Tax paid on Port Services and not Customs House Agent services. Though the invoice is not issued by the port, as per Sl. No. 2 of the Notification No. 41/2007-S.T., it is not required to establish that the services were rendered by the port or any person authorized by the port during the relevant period and this condition was included only in the subsequent Notification i.e., Notification No. 17/2009-S.T. The issue on merits is held in favour of the assessee - the rejection of refund on Port services cannot sustain - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 00428 of 2010 - FINAL ORDER NO. 42335 / 2021 - Dated:- 23-9-2021 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri S. Muthu Venkataraman, Advocate for the Appellant Shri Arul C. Durairaj, Authorized Representative for the Respondent ORDER The Tribunal vide Final Order No. 41431 of 2018 dated 01.05.2018 had earlier disposed of the above appeal. In paragraph 5 of the said order, the issue with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the question of law at this stage, with a direction to the learned Tribunal to decide the said issue, after giving reasonable opportunity of hearing to both the parties once again, discussing the relevant facts in the matter. Accordingly, the Civil Miscellaneous Appeal is allowed. No costs. (Emphasis applied) 3.1.1 Learned Counsel Shri S. Muthu Venkataraman appeared and argued on behalf of the appellant. It is submitted by him that the appellant had filed application for refund of the Service Tax paid on taxable services received by them for use in the export of their goods. These services are in the nature of Goods Transport Agency (GTA), Port Services, Courier Agency, Storage and Warehousing and Business Auxiliary Services. That the present refund claim pertains to the period from April 2008 to June 2008 and the claim was filed in terms of Notification No. 41/2007-S.T. dated 06.10.2007. In the Show Cause Notice dated 12.09.2008, the allegation raised by the Department in respect of the claim for refund of Service Tax paid on port services is that the service providers are not registered for the specified services. He referred to Annexure-I to the Show Cause Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise in order; that procedural violations by the service provider have to be dealt separately. It is pointed out by the Learned Counsel for the appellant that the said Circular is issued specifically for clarifying the doubts and difficulties that have come up in implementation of the refund scheme under Notification No. 41/2007-S.T. That this clarification of the Board vide its above Circular dated 12.03.2009 was referred to by the Hon ble High Court of Gujarat in the case of Commissioner v. M/s. Adani Enterprise Ltd. reported in 2014 (35) S.T.R. 741 (Guj.). The Hon ble High Court has held that when the service provider obtained registration only for one service, but provided several services, the refund cannot be rejected on the ground that the service provider has not obtained registration. This decision in M/s. Adani Enterprise Ltd. (supra) was also relied by the Tribunal in the case of M/s. SRF Ltd. (supra). He prayed that the appeal may be allowed. 4. Learned Authorized Representative Shri Arul C. Durairaj appearing on behalf of the Department supported the findings in the impugned order. It is submitted by him that the invoices for which the appellant has paid Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export goods and shall be in the name of the exporter. 2. Section 65(105)(zn) Services provided for export of said goods - (Emphasis applied) 7.2.2 At this juncture, it would also be relevant to notice the subsequent notification No. 17/2009-S.T., 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 or any person authorized by the port in respect of the export of said goods. (Emphasis applied) 8.1 The Tribunal in the case of M/s. SRF Ltd. (supra) had analysed the very same controversy and observed in paragraph 5 of its order that in Sl. No. 2 of Notification No. 41/2007-S.T., there is no requirement that the services are to be provided by a port or any person authorized by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be covered under the sub-clauses specified in Notification No. 41/2007. This is also the situation in the present case. 8.2.2 Again, in M/s. SRF Ltd. (supra), in paragraph 7, the Circular No. 334/1/2010-TRU dated 26.02.2010 was also referred to by the Tribunal. The Board, having taken note of the difficulties faced by taxpayers on the ground that they are not able to obtain permission letters for service provider authorizing such service provider to undertake a particular task inside the port, had issued the clarification. It is stated in the above Circular that to remove these difficulties, the definition of Port Services was amended to clarify that all services provided entirely within the port/airport premises would fall under the services. That specific authorization from the port / airport authority would not be a pre-condition for making the Port Services taxable. 9. The issue that has been considered in M/s. SRF Ltd. (supra) is exactly the issue that is presented by the facts of the present case. The said decision is therefore squarely applicable. 10. From the judgement of the Hon ble High Court it is seen that instead of adverting to Sl. No. 2 of the Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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