Whether refund of Port services is admissible when said service is received and used by exporter prior to period of exports?

PJ/Case Laws/2012-13/1548

Case:- M/s Hind Aluminium Industries Ltd. Vs. Commr. Of Service Tax, Mumbai-II

Citation:- 2013-TIOL-615-CESTAT-MUM

Brief Facts:- The appellant filed a refund claim under the Notification NO. 41/2007 dated 6.10.2007 in respect of Service Tax paid by them for Port services utilized for export of the goods during period April 2008 to June 2008. The refund claim was rejected by the Assistant Commissioner on the ground that as Port services were availed prior to period ending September 2008, refund is not admissible considering the date of filing of the refund claim which is on 18.3.2009. The appellants filed and appeal before the Commissioner of Central Excise (Appeals), who vide the impugned order rejected their appeal. Thereafter appellant filed preferred appeal before Tribunal against order of Commissioner (Appeals)

Appellant’s contention:- The Appellant have requested the Tribunal to decide their appeal after due consideration of detailed grounds of appeal mentioned by them in the appeal memorandum. The appellants submitted that under Notification No. 41/2007 refund claim should be filed within a period of six months from the date of exports and there is no condition that refund shall be available only in respect of input services availed within six months prior to the date of exports. It is submitted by the appellant that they were denied the refund claim filed on 18.3.2009 in respect of exports made on 3 rd December 2008 and refund claim is therefore within time limit and accordingly the appellants are eligible for the refund applied by them.

Respondent’s Contention:- The Respondent reiterated the findings of the lower authorities.

Reasoning of Judgment:- The Tribunal heard both the parties and find that the appellants have claimed the refund of service tax paid on Port services which were said to have been received and used for export of the goods during the period July 2008 to December 2008. It has been held by both the lower authorities that the port services were availed prior to the quarter ending September 2008 and refund is not admissible considering the date of filing of said claim on 18.3.2009. The Tribunal also finds that the Port Services are taxable services as defined in Section 65(105)(zn) of the finance Act, 1944 as amended and the said service is notified at Serial No. 2 of the Schedule in the Notification 41/2007. Description in column 3 shows as “services provided for export of said goods” and there is no other condition attached in respect of the Port services”. Tribunal also finds that Clause (a) of the Notification reads as under:-

“The exemption shall be claimed by the exporter of the goods for the specified services received and used by the exporter for export of the said goods.”

This is a fact that the Port services in respect of which refund is claimed were availed prior to quarter September 2008. Tribunal finds that the refund of Port services is admissible when said service is received and used by the exporter for the export of said goods. Since the goods in question were exported during the period July 2008 to December 2008, the Port services availed prior to July 2008 cannot be treated as used for export of the goods exported from, July to December 2008. Accordingly, Tribunal find that lower authorities have rightly denied the refund in respect of the Port services availed prior to July 2008. Therefore, Tribunal uphold the Order-in-Appeal and reject the appeal of the appellant.

Decision:- Appeal rejected

Comment:- The substance of this case is that the refund of Port services is admissible when said service is received and used by the exporter for the export of said goods. Since the goods in question were exported during the period July 2008 to December 2008, the Port services availed prior to July 2008 cannot be treated as used for export of the goods exported from, July to December 2008. Hence Tribunal rejected the appeal of the appellant.

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PJ/Case Laws/2012-13/1548

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