Nagpur vs Noble Grains India Pvt. Ltd

[Arising out of Orders-in-Appeal Nos: 80 to 81/NGP/2009 dated 26/02/2009 & Order-in-Appeal No. SN/122 to 123/NGP/2009 dated 27/04/2009 passed by the Commissioner of Customs & Central Excise (Appeals), Nagpur.]

For approval and signature:

Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri P.R. Chandrasekharan, Member (Technical)

1. Whether Press Reporters 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

Commissioner of Central Excise & Customs

Nagpur

Appellant Vs

Noble Grains India Pvt. Ltd.

Respondent

Appearance:

Shri R.K. Das, Dy. Commissioner (AR) for the appellant

Shri Durgesh Nadkarni, Advocate for the respondent

CORAM:

Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri P.R. Chandrasekharan, Member (Technical)

Date of hearing: 11/02/2015 Date of decision: 11/02/2015

ORDER NO: ____________________________

Per: M.V. Ravindran:

All these four appeals are disposed of by a common order as they raise same question of law and facts and are in respect of the same assessee-respondent.

2. Revenue is aggrieved by the impugned orders and has filed these appeals.

3. Heard both the sides.

4. The relevant facts that arise for consideration are that the respondent are manufacturers of soya extraction meal holding Central Excise registration and are also having service tax registration. The respondent filed refund claims of service tax as per the conditions of Notification No. 41/2007-ST dated 06/10/2007. The said refund claims came to be rejected by the adjudicating authority on the ground that the discrepancies as pointed out by him were not satisfactorily replied. The respondent preferred appeals before the first appellate authority. The first appellate authority set aside the orders-in-original and allowed the appeals holding that the respondent-assessee is eligible for the refund.

5. The learned DR took us through the grounds of appeal of the Revenue and submit that the first appellate authority has erred in allowing the appeals inasmuch as the assessee-respondent has got its manufacturing unit at Akola while the documents pertaining to export were prepared by their registered office at Indore and hence the refund claims, if any, of the service tax paid on the services, which were utilised for export, would be required to be filed with the Indore Commissionerate. It was also sought to be emphasised that the assessee-respondent has not fulfilled the conditions of the Notification 41/2007 as the exporter is a merchant-exporter.

6. The learned counsel appearing on behalf of the respondent-assessee would draw our attention to the various facts of the case and submit that the refund claims which had been preferred by the assessee is in respect of the service tax paid by the respondent-assessee to service providers like CHA, Cargo Handling Services, Port services, etc. which are in respect of export of goods. He would submit that the goods which were cleared from the factory premises at Akola were exported is not in dispute. He would submit that the first appellate authority has correctly recorded the findings and allowed their appeals.

7. On consideration of the of the submissions made by both the sides, we find that the issue involved in this case is regarding refund claims filed by the assessee-respondent in respect of the service tax paid by them to the service providers in connection with the consignments which were cleared for export. It is undisputed that the consignments were exported and they were cleared from the Akola factory of the respondent-assessee; services were received in respect of the very same consignments. The main contention of the Revenue is jurisdiction of sanctioning such refund would arose only at Indore Commissionerate as the documents i.e., export documents were prepared from the registered office of the assessee-respondent, we are unable to accept this contention of the Revenue for two reasons. Firstly, there is no dispute that the consignments which were exported were cleared from the Akola factory; the jurisdiction for claiming the refund of service tax paid on such services which are in connection with the export of goods cannot be shifted to their Indore Commissionerate as the registered office of the respondent-assessee being at Indore cannot be a reason for shifting the jurisdiction to Indore. It is undisputed that the manufacturing activity has taken place at Akola and falls within the jurisdiction of the Commissionerate at Nagpur. Secondly, there is no dispute as to that the respondent is a manufacturer-exporter, a category which is covered under Notification No. 41/2007-ST. The relevant findings recorded by the first appellate authority is reproduced below:

6.2 After going through the Notification No. 41/2007-ST dated 06-10-2007 it is amply clear that the appellant has fulfill the condition of the Notification. As regards filing of refund claim by the manufacturer exporter it is clear from para 2(a) that the person liable to pay service lax under Sub-Section (1) or sub-Section (2) of Section 68 of the Finance Act, 1994 shall pay service tax as applicable on the specified services provided to the exporter and used for export of the said goods, and such person shall not be eligible to claim exemption for the specified services; provided that where the exporter of the said goods and the person liable to pay service tax under sub-section (2) of Section 68 for the said services are the same person, then in such cases exemption for the specified services shall be claimed by that person. In the instant case the Service tax is paid by the appellant and therefore the appellant is right to claim the refund. Further as per para 2(b)(i) the manufacturer exporter of the said goods shall file the claim for refund to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture or warehouse.

6.3 Further as required in pars 2 (f) of the said Notification there is no dispute regarding the documents submitted by the appellant alongwith the refund claim. There is no dispute regarding payment of service tax on the specified services for which claim for refund of service tax paid is filed, it is not the case of the Department that export did not take place nor was there any dispute about these being a contract between Noble grain India Pvt. Ltd., and the Foreign buyer. The disputes pertains to technical issue of non mentioning of Service Tax No. or Non mentioning of Invoice Number for which the refund can-not be denied.

8. We totally agree with the findings recorded by the first appellate authority that the respondent-assessee, being a manufacturer-exporter, goods cleared for export, are from the factory falling within the Nagpur Commissionerate and have correctly filed the refund claims at Nagpur Commissionerate and are eligible for the refunds. It is avowed policy of the Central Government that all exports should be of the goods and not taxes. Keeping in mind such a policy, in our view, the impugned orders upholding the claim of the respondent-assessee are correct, proper and legal and do not suffer from any infirmity.

9. All the four appeals are rejected.

(Pronounced in Court)

(P.R. Chandrasekharan) Member (Technical) (M.V. Ravindran) Member (Judicial)

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