Refund claim should not be denied if sufficient co-relation established.

PJ/CASE LAW/2014-15/2550

Case:- DEVESH AGRIEXIM PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-I

Citation:-2014 (36) S.T.R. 1116 (Tri. - Mumbai)

Brief facts:- This is an appeal filed against the rejection of refund claim under Notification No. 41/2007-S.T., dated 16-10-2007. An amount of Rs. 25,226/- was rejected relating to Port Service on the ground that the appellants have used only the Bill of Lading and not the copy of the invoice. Ld. Counsel states that initially the claim was rejected on the ground that M/s. APL (India) Pvt. Ltd. is not registered with the Service Tax department. At the Commissioner (Appeals)’ stage, they produced the registration certificate and thereafter the Commissioner (Appeals) has allowed the refund relating to Port Service in respect of number of invoices. However, in respect of one case, the appellants have produced the copy of the Bill of Lading and not the copy of the invoice. In view of this fact, the Commissioner (Appeals) disallowed the claim. In fact, the handling services was done by M/s. APL (I) Pvt. Ltd., on behalf of M/s. MPRS Shipping & Logistics Pvt. Ltd., and M/s. APL (I) Pvt. Ltd. placed invoice in the name of M/s. MPRS Shipping & Logistics Pvt. Ltd., indicating service tax amount of Rs. 13,645/-. M/s. MPRS Shipping & Logistics Pvt. Ltd., thereafter issued invoice in the name of the appellants and charged the same amount. The Commissioner (Appeals) has taken a view that M/s. MPRS Shipping & Logistics Pvt. Ltd. is not authorized by the Port authority to carry out the handling activity and therefore they cannot issue the invoice relating to Port Service.

Appellant’s contention:-The Ld. counsel contended that now they produced invoices. Relating to GTA service Ld. Counsel submits that they will try to contact CHA to get the lorry receipt and also it will be possible for them to co-relate the bills with the goods exported under Shipping Bill.

Respondent’s contention:- The ld. AR for the respondent reiterates the findings in the impugned order.

Reasoning of judgment:- They have considered the submissions. The Bill of Lading is not a proper document for either payment or availment of service tax. However, the appellants have now produced invoices. The said invoices were not produced either before the original authority or the Commissioner (Appeals). In this regard, the matter is therefore remanded to the original authority to examine the case. As far as the invoice is concerned, they find that there is no dispute about the fact that the goods were exported. Port services are availed and while availing the Port services the service tax was paid. The fact that M/s. MPRS Shipping & Logistics Pvt. Ltd. is not authorized is not relevant as the said service was originally provided by M/s. APL (India) Pvt. Ltd. In view of the said position, the refund claim amounting to Rs. 13,645/- is allowed.
In respect of the refund claim amounting to Rs. 67,747/- relating to GTA service, the appellants’ claim is that they have not engaged any transporters for the same but entrusted the whole job to Custom House Agents. The CHA in turn has raised the bills for the transportation charges and as receiver of the said service they have in turn paid the service tax to the Government Account. The objection of the department is that the appellants have not produced lorry receipt and in the invoice the details are not mentioned and it is difficult to co-relate. However, the ld. Counsel submits that they will try to contact CHA to get the lorry receipt and also it will be possible for them to co-relate the bills with the goods exported under Shipping Bill. Since the ld. Counsel undertakes to produce the lorry receipt and make attempt to co-relate the bills with the goods exported, the matter is remanded to the original authority who can examine on the basis of the documents if produced. These documents will be produced by the appellants within a period of two months failing which it will be presumed that they are not in a position to produce the same.
The appeal is allowed in the above terms.

Decision:-Appeal allowed by way of remand.

Comment:-The substance of the case is that although the refund can be granted on the taxable services which is used by exporter for export of goods as per notification no. 41/2012-ST on submission of original invoice issued by the service provider but even in the absence of invoice issued by the service provider, the refund claim may be granted if sufficient co-relation is established by the assessee that the said services were used for the purpose of export of goods.

Prepared by:- Monika Tak

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PJ/CASE LAW/2014-15/2550

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