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TMI Blog2022 (4) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... co-relation and nexus between input services and exports made for the said period of claim for refund as well as payment of Service Tax made by them - all the exports as mentioned above are Third party Exports have been made through Visakhapatnam Port through MMTC Limited as per the export policy of canalized items. It is apparent that M/s MMTC Ltd. stands indemnified that export to be made through them and M/s S. K. Sarawagi Co. Pvt. Ltd. (the Appellant herein), is the owner of the goods, is not allowed to export 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. in the export of Manganese Ore, is a compulsion to be observed by the Appellant and it is not by choice which has led to the present dispute - the Appellant declared that no CENVAT Credit of service tax paid on the specified service used for export of said goods has been taken under CENVAT Credit Rules, 2004. That the appellant have submitted the invoices issued in the name of the exporter duly certified as prescribed in the said notification in terms of Para 3 (j) (k) of the said No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned that the title of the goods will pass to MMTC only after it is loaded in the Vessel. It is also evident from the contract that the services which are to be rendered for getting the Manganese Ore Loaded to the vissel, would be the responsibility of the appellant/assessee. The payment of the services provided is to be made by the recipient of service which in the present case is the Appellant. It is also the submission of the Ld. Consultant that there is sufficient evidence from both the contracts i.e. between the Appellant and M/s MMTC as well as MMTC and S.K. Resources (Foreign Buyer) that there is an in-extricable link between the goods exported and sale of goods by the Appellant for export through MMTC. She relied upon the various decisions and prayed that the impugned order be set aside. 5. The Ld. D. R., for the Revenue re-iterates 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 is also in the name of M/s MMTC Ltd. Therefore, it cannot be established that the claimant is the exporter and accordingly submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They entered the goods within the port area for the purpose of export. Service Providers have provided services to them and they have made payment to the service providers. They are having a plot at the port. The services are rendered by the Port authority through the CHA. Till the time Manganese Ore is loaded on the vessel, the appellant is the owner of the goods. The money received in convertible currency is received first by MMTC Ltd. and after retaining a certain amount as per contract MMTC Ltd. makes payment to the appellant in Indian Rupee. 7. It is also stated by the appellant that the agreements made between the foreign buyer and MMTC Ltd. and between MMTC Ltd. and the appellant are back to back contracts and MMTC Ltd., retains certain amount as commission for such transaction. They are the exporter within the meaning of Customs Act, 1962. 8. It was also contended by the appellant that they have also satisfied the criteria of being exporter in terms of Foreign Trade Policy 2009-2014 as the activity of MMTC is only as the Commission Agent in respect of the transactions and the role of the appellant is that of Merchant Exporter. 9. The term exporter has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Item Description Export Policy Name of Restriction 80 2602 00 00 Kg. Manganese Ores Excluding the following: Lumpy/ blended Manganese Ore with More than 46 percent Manganese STE Export through (a) MMTC Ltd (b) Manganese Ore India Ltd. (MOIL) for manganese ore produced in MOIL Mines. That a Contract is normally made between the foreign buyer and the Appellant. The buyer is identified by the Appellant. MMTC enters into an agreement with the foreign buyer. That the Appellant enters into an agreement with MMTC for a back contract. That it is explicit enough that port services have to be performed by different service provider in the name of the Appellant without which it is not possible to transfer the title of goods on FOB ST basis. That the Appellant is an exporter in terms of the definition of Export under Section 2 (20) of the Customs Act, 1962 which is depicted below:- 2(20)- Exporter in relation to any goods at any time between their entry for export the time when they are exported, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 18 it is revealed as follows:- The Buyer s may, at any time, by notice in writing summarily terminate this contract without compensation to the Seller s in the event of insolvency of the Sellers/Insolvency of any partner of the Sellers/dissolution of the Sellers. It is agreed and understood between the Buyers and the Sellers that purchase contract has been entered into to service the Buyer s corresponding sale contract No.MMTC/2012- 2013/MN(P)/04 dated 03.08.2012. All terms and conditions as stipulated in buyers corresponding sale contract No.MMTC/2012- 2013/MN(P)/04 dated 03.08.2012 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 sallars if for reasons, 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 qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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