Hindustan Petroleum Corpn. Ltd vs Commissioner Of Service Tax

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

COURT No. I

Appeal No. ST/527, 532 and 534/2011

(Arising out of Order-in-Appeal No. YDB(42)42/MI/2011/1728 dated 15.06.2011, YDB(45)45/MI/2011/1758 dated 22.06.2011 and YDB(46)46/MI/2011/1758 dated 22.06.2011 passed by Commissioner of Service Tax (Appeals), Mumbai I)

For approval and signature:

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

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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?

Hindustan Petroleum Corpn. Ltd. Appellant Vs.

Commissioner of Service Tax, Mumbai I Respondent

Appearance:

Ms. Padmavati Patil, Advocate for appellant Shri R.K. Das, Dy. Commr (AR) for respondent

CORAM:

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

Date of Hearing: 02.09.2015 Date of Decision: 02.09.2015

ORDER NO

Per: M.V. Ravindran

These appeals are disposed of by a common order as they raise the same issue and in respect of the very same assessee.

2. Heard both sides and perused the records.

3. The issue involved in this case is regarding the refund of service tax paid by the appellant to Mumbai International Airport P. Ltd. (MIAPL) for the services rendered by them to appellants while supplying ATF for foreign going aircraft from Aviation Servicing facility. Appellant were extended aviation servicing facility by MIAPL and charged an amount from the appellant for extending such service on which service tax is paid. Appellant had claimed refund of such service tax on the ground that the ATF which has been fueled by them in air crafts that were undertaking foreign voyage and hence it is export of the goods, for which said services are used. Adjudicating authority as well as the first appellate authority have not accepted the contentions raised by appellants and rejected the arguments put forth before them.

4. Learned Counsel would draw our contention to various facets of the case and submit that the Notification which grants refund of the service tax paid of the services which were utilized for export of goods needs to be considered in its correct perspective. It is her submission that the Notification No. 17/2009 dated 07.07.2009 was amended by Notification No.37/2010 dated 28.06.2010. She would submit that the earlier Notification 17/2009 was covering the services rendered by a service provider for export of goods and terminal handling charges. It is her submission that as per the Notification 37/2010 dated 28.06.2010, the services provided by the air port authority to any other persons was also included for the refund of the service tax. She would draw strength from the judgement of this Tribunal in the case of Devarsons Industries P. Ltd.  2014 (33) STR 197 (T) for the proposition that when there is an export no taxes has to be paid and refund needs to be sanctioned. She would also submit that same view has been expressed by this Bench in the case of Fomento (Karnataka) Mining Co. Pvt. Ltd.  2014-TIOL-1402-CESTAT-Mum.

5. Learned D.R. reiterated the findings of the adjudicating authority.

6. On consideration of the submissions made by both the sides, we find that the appellant is claiming of the service tax paid on the services rendered by MIAPL to the appellant during the period December 2009 to May 2010 for fueling aircrafts by ATF. It is undisputed that the appellant has loaded the ATF in aircrafts which were on foreign trips. We find that the service tax paid on any service rendered by export of goods were eligible for the refund from the authorities. The said refund was extended by Notification 17/2009-ST. On perusal of the said Notification we find that the services which were considered by the Notification for refund of the service tax paid were as per the provisions of Section 65(105) and the said classifications were sub-clause (zn) and the payment of service tax on the services only known as terminal handling charges. The services rendered by MIAPL will not fall under any of the two categories as the service tax discharged by MIAPL is under Section 65(105)(zzm). The service tax paid under the category of services provided by Airport authority under Section 65(105)(zzm) were inserted in Notification 17/2009-ST by Notification 37/2010-ST dated 28.06.2010. The arguments of the learned Counsel is that this notification should be read as being effective in the Notification 17/2009-ST from the date it was issued is not acceptable. Notification 17/2009-ST specifically grants refund of tax paid on services provided under the category as per classification as mentioned therein. The service tax paid by MIAPL is under the category which was not classified under Notification 17/2009-ST as it existed during the period when the services were received by the appellant for fueling the aircrafts which are on foreign. In view of the above, we hold that both the lower authorities were correct in rejecting the refund claim filed by the appellant. We do not find any infirmity in the impugned order passed by the lower authorities.

7. Appeals filed by the appellants are devoid of merits and are rejected.

(Dictated in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

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1 5 Appeal No. ST/527, 532 and 534/11