M/S. Shree Agencies Pvt. Ltd vs Cce-Jaipur-I
- CitationAppeal No. ST/547/2009-CU[DB]
Ratio decidendi
The rule this decision rests on
A notification granting a refund of service tax, which does not expressly state that it operates retrospectively, is not to be given retrospective effect; a later notification cannot be read as extending back to the date of an earlier notification absent any indication of retrospective applicability in its own terms. A refund of service tax paid under a category of taxable service that is not covered by the refund notification is not admissible under that notification, and the claimant must show that the service paid for falls within the categories the notification specifies. Service tax paid on handling charges, which the appellant itself accepted were not freight charges, is not admissible for refund under a notification confined to freight charges.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of order-in-appeal no. 11-12 (DK) CE/JPR-I/2009 dated 22.01.2009 passed by The Commissioner (Appeals-1) Central Excise and Customs-Jaipur]
1. Whether Press Reporter may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of the order?
4. Whether order is to be circulated to the Department Authorities?
M/s. Shree Agencies Pvt. Ltd. Appellant
Vs.
CCE-Jaipur-I Respondent
Appearance: Shri Bipin Garg, Advocate for the appellant.
Ms. Suchitra Sharma, Commr. (AR) and Shri Amreesh Jain, DR for the respondent.
Coram: Honble Mr. Justice G. Raghuram, President
Honble Shri R.K. Singh, Member (Technical)
Final Order No. 52937/2015
Per: R.K. Singh
The appeal has been preferred against order-in-appeal dated 22/1/2009 which upheld the order-in-original dated 1/4/2008 in terms of which refund of Rs. 92135/- sought in terms of notification no. 41/2007-ST was rejected on the ground that the service tax amounting to Rs. 92135/- was paid under category of taxable service which was not covered for the purpose of refund under notification no. 40/2007-ST or 41/2007-ST. The appellant claimed that service tax of Rs. 80865/- was paid on the terminal handling charges at the port, and therefore, the service is very much covered under port service. The refund claim of Rs. 5976/- (as mentioned in Para B of the ground of appeal) was in respect of insurance service which was not covered under 40/2007-ST but was later on covered under notification no. 41/2007-ST and that notification no. 41/2007-ST should be given effect from the date when notification No. 40/2007-ST was issued. Similarly, an amount of Rs. 5976/- (as mentioned in para C of the ground of appeal) has been denied on the ground that it was not paid under GTA and it was charged by Railway in respect of charges which were not freight charges.
2. We have considered the contentions of the appellant.
3. Regarding the amount of Rs. 80865/-, we find that the sample invoices produced by the appellant show the service tax having been paid under business support service which is not a service covered under notification no. 40/2001-ST or 41/2007-ST dated 6/10/2007. Further, the contention that notification no. 41/2007-S.T. should be given effect from 7/9/2007 when notification no. 40/2007-ST was issued is totally untenable as there is nothing in notification no. 41/2007-ST which would even suggest that it has any retrospective applicability. Consequently, the refund pertaining to Insurance Service is not admissible. The appellant itself has admitted that an amount of Rs. 5976/- was the service tax relating to handling charges and not in relation to freight charges, and therefore, even this amount is not admissible for refund under any of the two notifications.
4. To sum up, in the light of the aforesaid analysis, we find that there is no infirmity in the impugned order, and therefore, the appeal is rejected.
(Justice G Raghuram)
President
(R.K. Singh)
Member (Technical)
Ritu
2
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