For Approval And Signature vs Commissioner Of Central Excise, Raigad

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. I APPEAL No.ST/235,276/11-Mum

(Arising out of Order-in-Appeal No.YDB/95 & 96/RGD/2011 dated 31.01.2011 passed by Commissioner of Central Excise (Appeals II), Mumbai)

For approval and signature: Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) 1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the :No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? M/S. JSW STEEL LTD. Appellant (Ispat Industries Ltd.) Vs. Commissioner of Central Excise, RAIGAD Respondent

Navi Mumbai

Appearance:

Shri. Roshil Nichani, Advocate for appellant Shri. P.V. Sekhar, DC (AR) for respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing : 21/07/2015 Date of Decision : 21/07/2015

ORDER NO

Per: M.V. Ravindran

1. These two appeals are filed against order-in-appeal no. YDB/95 & 96/RGD/2011 dated 31.01.2011. As the issue involved in the appeal are common and in respect of very same assessee, we dispose of both the appeals by a common order.

2. The relevant facts that arise for our consideration is that the appellant had filed refund claim of the service tax paid on input services used for manufacturing of goods which are exported. The appellant had claimed the refund of service tax paid on PORT services and CHA services. The adjudicating authority after following due process of law rejected a refund claim on the ground that appellant had not complied with the conditions of notification and they file to furnish evidences of actual payment of service tax. On an appeal the first appellate authority concurred with the views of the adjusting authority and rejected the appeals.

3. Learned counsel appearing on behalf of the appellant would draw attention to the factual matrix of the case and findings recorded by both the lower authorities. He would submit that the both lower authorities are insisting upon evidence of payment of service tax liability by the service provider while notification does not impose any such condition. He would take us through the notification no.41/2007-ST dated 6 Oct 2007.

4. Learned departmental representative on the other hand drew our attention to the findings recorded by the lower authorities and submits that the documentary evidences of discharge of service tax liability are not correct document as envisaged in notification no. 41/2007-ST. It is her submission that the evidences produced by the appellants in respect of chalans is not matching with the date of services rendered by the service provider. It is her submission that in the absence of any proper documentary evidences, refund clam has been correctly rejected and she relies upon CBEC circular no. 106/9/2008-ST dated 11/12/ 2008.

5. We have considered the submission made by both sides and perused the records.

6. We find the issue involved in this case is regarding the refund of an amount which have been paid by the appellant as service tax and used the services for export of the goods. It is undisputed that the services are rendered to the appellant by Mumbai Port Trust, and CHA.

7. It is also undisputed that appellant is eligible to avail credit of service tax paid by them to the service provider.

8. We find that the impugned order is unsustainable for more than one reason. Firstly when we find that finding recorded by the lower authorities of the documents are improper, the document in appeal on perusal, found to be correct and in accordance with the provisions of Service Tax Rules. We find that the invoices contain service tax registration Number, Name and address of the invoice maker and appellants name as the services receives, as regards the documents of Port Trust, we find that the said documents clearly indicate service tax registration number of Mumbai Port Trust and service tax amount discharged under the head Port Services. In our considered view, these being no dispute as to the facts that services were utilized by the appellant for export of goods, reaction refund of such an amount is incorrect. Secondly, we find that both the lower authorities recording that appellant should have produced evidence as to payment of service tax liability by the service provider to the government of India is a non-started and curios findings. We find on careful reading of notification no. 41/2007-ST dated 06 Oct. 2007, it does not indicate that the refund claim to be evidenced by producing information of the service provider having discharged the service tax liability. After going varouse clause (f) we find that the only evidence required is payment of service tax on the specified services which in our view, is satisfied in this case by showing that the invoices which was raised by the service provider were paid by the appellant. It is a common sense that no one will be allowed to enter the Mumbai port trust area and export without paying the changes/fees to port trust. In our view, the conditions of notification of discharging the service tax liability by the appellant to the service provider are satisfied and there is no reason for rejecting the appeal.

9. Accordingly, in the facts and circumstances of this case we hold that the impugned order is unsustainable. The impugned order is set aside and appeals are allowed with consequential relief.

(Dictated in Court)

(C.J.Mathew)

Member (Technical) (M.V. Ravindran) Member (Judicial) Akp