M/S. Essar Steel India Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-CCEA-SRT-I/SSP-350/2012-13/U/S-35A dated 14.02.2013, Passed by Commissioner (Appeals) Central Excise, & S.T., Surat)

M/s. Essar Steel India Limited : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Surat : Respondent (s)

Represented by :

For Appellant (s) : Ms. Dimple Gohil, Advocate For Respondent (s) : Shri S.K. Shukla, Authorised Representative

For approval and signature :

Mr. H.K. Thakur, Honble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. H.K. Thakur, Honble Member (Technical)

Date of Hearing : 13.03.2015

Date of Decision : 10.04.2015

ORDER No. A/10310/2015 Dated 10.04.2015

Per : Mr. H.K. Thakur;

This appeal has been filled by appellant against Order-in-Appeal No. CCEA  SRT- 1/ SSP  350/ 2012-13 Dated 14.02.2013 under which the Order of the Adjudicating authority rejecting the refund claim of Rs. 9,33,373/- was upheld. The appeal was rejected on the ground that appellant was not eligible to exemption vide Notification No. 17/2009-ST dated 07.7.2009 and that condition of Notification No. 9/2009-ST dated 03.3.2009 was not fulfilled.

2. Ms. Dimple Gohil (Advocate) appearing on behalf of the appellant submits that at the time of receipt of services, appellant had one SEZ unit at Hazira and another DTA unit at Hazira. That when refund of services availed by SEZ unit were made under Notification No. 17/2009ST dated 07.7.2009 then both, SEZ unit and the DTA unit merged under the DTA unit of the appellant. That appellant was the rightful claimant, and therefore, refund of duty paid as SEZ was correctly admissible under Notification No. 17/2009ST and the condition of Notification No. 9/2009ST dated 03.3.2009 were not applicable. Learned Advocate relied upon the case laws of Tata Consultancy Services vs. CCE, LTU (Mumbai) - [2013 (29) STR 393 (Tri. Mum.)] to argue that minor lapses could be ignored as it is a case of refund of taxes related to exports. Appellant also relied upon, a liberal view to be taken as per CBEC Circular No. 120/01/2010 dated 19.01.2010.

3. Sh. S.K. Shukla (AR) appearing on behalf of the Revenue defended the order passed by the first appellate authority and argued that appellant was eligible to refund of export linked taxes only under Notification No. 9/2009  ST dated 03.03.2009.

4. Heard both sides and perused the case records. The issue involved in the present proceeding is whether appellant is eligible to refund by way of exemption under Notification No. 17/2009ST dated 07.7.2009 as amended by Notification No. 40/2009ST dated 30.9.2009. This exemption is admissible to the exporters of goods with respect to specified services received and used by the appellant for export of goods. It is observed from the case records that services were received by the SEZ unit of the appellant under invoice dated 30.01.2010 dated 31.12.2009 when the Services for transport of export of goods through national waterways inland water and Coastal Shipping were provided by M/s. Essar Logistics Limited. The said service stand included at Sr. No. 17 of Notification No. 17/2009  ST dated 07.7.2009 as per Notification No. 40/2009  ST dated 30.9.2009. Since the appellant had paid the duty, no reasoning has been given by the first appellate authority as to why refund under Notification No. 17/2009  ST, as amended, will not be admissible. The case law of Tata Consultancy Services vs. CCE LTU  Mumbai [2013 (29) STR 393 (Tri. Mum.)] and CBEC Circular No. 120/01/2010 dated 19.1.2010 relied upon by the appellant also convey that a liberal view should be taken in sanctioning of export related refunds in order to encourage exports and to provide Zero  Tax export of goods and services. It is not denied by the Revenue that both the SEZ unit and the DTA unit were Later merged and the appellant therefore, become rightful claimant of the refund of Services availed by the SEZ unit of the appellant. Appellant can not be asked to fulfil the condition of Notification No. 9/2009-ST dated 03.3.2009 which he has not claimed. In view of the above observations, appeal filed by the appellant is required to be allowed.

5. Appeal filled by the appellant is allowed with consequential relief.

(Order pronounced in the Court on 10.04.2015)

(H.K. Thakur) Member (Technical) .KL

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