Rejection of refund on the ground that Terminal Handling Charges, CHA and Bank charges not covered under Port Services.

PJ/CASE LAW/2016-17/3099

Case:-CYRSTALLINE EXPORTS LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI

Citation:-2015 (37) S.T.R. 778 (Tri. - Mumbai)

Brief Facts:-The appellant filed an appeal against the impugned order wherein refund claim has been rejected by the lower authorities on the premise that the appellant has not complied with the condition of the Notification No. 41/2007-S.T., dated 6-10-2007.
The brief facts of the case are that the appellant filed a refund of the input service credit paid by them on the services namely Terminal Handling Charges, CHA and banking charges. The lower authorities rejected the refund claim on the premise that all these services are not defined as Port Service and service tax has not been paid by the appellant on the Port Service. Therefore, the appellant is not entitled for Service Tax refund of the input service credit. Aggrieved the appellant is before Tribunal.

Appellant contentions:- None appeared on behalf of the appellant but a request has been received that the appeal be decided on merits after considering the grounds of appeal.

Reasoning of Judgment:-Considering the fact that in the impugned order, the refund to the services availed by the appellant on Terminal Handling Charges have been denied on the premise that same does not qualify as Port Charges but as per the C.B.E. & C. Circular No. 112/6/2009-S.T., dated 12-3-2009 where it has been clarified that if it is not in dispute that the service availed by the assessee is in the course of their business of export and the assessee has paid the service tax thereon, therefore it is not required to examine under which category the service tax provider has paid the service tax.
In these circumstances, as per the said C.B.E. & C. circular dated 12-3-2009, Tribunal hold that as it is not disputed that the appellant has used these service in the course of business of export, and they have paid the service tax thereon, therefore, the appellant are entitled for refund claim. Accordingly, the impugned order qua rejecting the claim on account of input service on terminal handling charges is set aside and the appeal is allowed with consequential relief.

Decision:- Appeal allowed.

Comment:- The gist of the case is that the refund claim cannot be denied for dispute in category of service under which service tax has been paid by the service provider. The refund of services availed by the appellant on Terminal Handling Charges have been denied on the premise that same does not qualify as Port Charges. But tribunal concluded that refund cannot be denied as far as it is not in dispute that the appellant has used services of Terminal Handling Charges, CHA and banking charges during the course of their business of export and has paid service tax thereon. Therefore, the appellant are entitled for refund claim.

Prepared By: Anash kachaliya

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PJ/CASE LAW/2016-17/3099

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