M/S. Gill & Company Pvt. Ltd vs Commissioner Of Service Tax, Mumbai-I

(Arising out of Order-in-Appeal No. M-I/AV/428/2010 dated 15-12-2010 passed by Commissioner of Service tax, Mumbai)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) and 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?

====================================================== M/S. Gill & Company Pvt. Ltd. Appellant Vs. Commissioner of Service Tax, Mumbai-I Respondent

Appearance: Ms Aprana H. Advocate, for Appellant Shri P.V. Sekhar, Deputy Commissioner (AR), for Respondent

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

Date of Hearing : 28/09/2015 Date of Decision : 28/09/2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal No. M-I/AV/428/2010 dated 15-12-2010.

2. Heard both sides and perused the records.

3. The appellant herein had filled three refund claims as per the provisions of notification no. 41/2007-ST dated 06-10-2007 for the period October, 2007 to June, 2008. The refund claim was in respect of service tax paid on terminal handing charges, inspection charges, cleaning & fumigation services, storage and warehousing, insurance services, courier services, GTA and CHA services. The adjudicating authority after following due process of law rejected the refund claims filed by the appellant. Aggrieved by such an order appellant preferred an appeal before the first appellate authority. The first appellate authority after following the due process of law accepted the contentions raised by the appellant and held that refund claim filed by the appellant in respect of all the other services is allowable except Terminal Handing Charges, and claims should be re-examined by the adjudicating authority. Revenue has not filed any appeal against the said order.

4. On perusal of the impugned order, we find that the issue before us is only regarding the eligibility to avail refund claim of the service tax paid on the Terminal Handing Charges. The first appellate authority has rejected the refund claim only on the ground that the service provider has discharged the service tax under other services than Port Services, the said services were not notified under notification no. 41/2007-ST. We find that the first appellate authority is in error in coming to such a conclusion. This our view is based upon the judgment of Honble High Court of Gujarat, on an identical issue, in the case of AIA Engineering Ltd.-2014 (36) S.T.R.1236 (Guj). We, respectfully following the ratio let down by the Honble High Court, we hold that the appellant is eligible for the refund on an amount paid as service tax on Terminal Handing Charges. The appeal is allowed to extent, it is challenged before us and the impugned order is set aside to that extent. At this juncture, learned counsel submits that the lower authorities have incorrectly considered the amounts on the refund claim for the period 1.4.2008 to 30.6.2008 and submits that the refund claim should be properly considered as per the refund claim filed by them. On perusal of the order-in-original, we do find that there is error in correct amount of refund to be sanctioned for the period April, 2008 to June, 2008. The adjudicating authority should consider the figures correctly as per directions.

5. The appeal is disposed of as indicated herein above.

(Dictated in Court)

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

akp 1 4 APPEAL No.ST/242/11-Mum