Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/CASE STUDY/2012-13/18
11 August 2012

Refund of service tax paid on port service

CASE STUDY
 

 
Introduction:
 
Port Services – Requirement of payment of service tax to service provider for receipt of port services is only while allowing refund. Refund of service tax not to be denied on the ground that service provider was not authorized by the port.
Goods Transport Agency Services – Refund of service tax has been denied on ground that prescribed document issued by service provider was not furnished. Statement showing detailed value of services received is sufficient and can be verified by original adjudicating authority in case of doubt. Non-submission of self-certified copies of document is a curable defect rather than a tool to re­ject the claim.
 
GUJARAT TEA PROCESSORS & PACKERS LTD. v/s C.C.E., AHMEDABAD-II[2012 (27) STR 158 (Tri.-Ahmd.)]
 
Relevant Legal Provisions:
 
Section 11B of Central Excise Act, 1944
 
Claim for refund of duty and interest, if any, paid on such duty —
(1) Any person claiming refund of any [duty of excise  and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise  and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person :
Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act :
[Provided further that] the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest.
(2)   If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise]is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund
Provided that the amount of [duty of excise and interest, if any, paid on such duty] as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise]under the foregoing  provisions  of  this  sub-section  shall,  instead of being  credited to  the  Fund, be paid to the  applicant, if such amount is relatable to –
 
(a)  rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
(b)  unspent advance deposits lying in balance in the applicant’s account current maintained with the Commissioner of Central Excise;
(c)  refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act;
(d)  the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not  passed on the incidence of such duty and interest, if any, paid on such duty to any other person;
 
(e)  the duty of excise and interest, if any, paid on such duty borne by the buyer, if he
had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person;
(f)   the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify :
           
Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person.
 
(3)   Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the  Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2).
 
(4)   Every notification under clause (f)  of the first proviso  to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder.
 
(5)   For the removal of doubts, it is hereby declared that  any notification issued under clause (f) of  the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.
 
[Explanation. — For the purposes of this section, -
 
(A)  “refund” includes rebate of duty of excise on excisable goods exported out of India or on       excisable materials used in the manufacture of goods which are exported out of India;
  
(B)  “relevant date” means, -
 
(a)  in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, -
 
(i)   if  the  goods  are  exported  by  sea  or  air,  the  date  on  which the ship or the aircraft in which    such goods are loaded, leaves India, or
(ii)  if the goods are exported by land, the date on which such goods pass the frontier, or
(iii)  if the goods are exported by post, the date of despatch of goods  by  the  Post  Office  concerned     to  a  place  outside India;
 
 (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid;
 
 (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside  India,  if  returned  to  a  factory  after  having  been  removed from such factory for export out of India, the date of entry into the factory;
 
(d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;
 
(e)  in the case of a person, other than the manufacturer, the date of purchase of the goods by such     person;
 
(ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order;
 
(eb) in case where duty of excise is paid provisionally under this Act or the rules made there   under,  the date of adjustment of duty after the final assessment thereof;
 
(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;
 
(f)  in any other case, the date of payment of duty.
 
Brief Facts:
 
The appellant had exported packaged tea and submitted refund claims for service tax paid by them used for export of finished goods on the ser­vices received by them viz. Port service and GTA service. As regards Port ser­vice, the refund claim has been disallowed on the ground that person providing service was not authorized by the Port. As regards GTA service, the refund has been denied on the ground that the credit was taken on the basis of debit note issued by service provider and further original copies of debit note/invoice were not signed and the appellant did not produce proof of payment of service tax to the satisfaction of lower authority.

Appellant’s Contention:
 Appellant contended that according to proviso to Rule 4A "in case the provider of taxable service is good transport agency, providing service to any person, in relation to transport of goods by road in a goods carriage, an invoice, a bill or as the case may be, a challan shall include any document by whatever name called, which shall contain the details of the consignment note, number and date, gross weight of the consignment and certain other information as required under this sub-rule". Therefore, the denial of refund on the ground that document issued by service provider was not a prescribed document does not appear to be supported by the relevant rule reproduced above. Further he submits that they had submitted self certified copies. In any case, it is a curable defect and they could have been asked to cure the defect rather than using it as a tool to reject the claim.
 
Issue Involved:
 
The issues involved in this case were that-
1. Port service - Whether the refund of service tax can be denied on the ground that the Service provider was not authorized by the port?
2. Goods Transport Agency service - Whether the refund of service tax can be denied on the ground that the self certified copies of documents issued by the service provider were not submitted?
 
Order of CESTAT: -
 
v  The Hon’ble CESTAT held that as regards refund of service tax paid on Port service, the issue is covered by the precedent decisions of the Tribunal, wherein it has been held that what is required to be seen while allowing refund is as to whether the service tax has been paid by the appellant and the service received was port service or not and the refund sanctioning authority cannot go into the question whether the service provider was authorized by port or not. The decisions in which a view has been taken are as under :
         a) Dishman Pharma & Chemicals Ltd - 2011 (21) S.T.R. 246
         b)Ramdev Food Products Pvt. Ltd. - 2010 (19) S.T.R. 833
v  Further as regards deficiencies in the debit note, Rule 9(2) of CENVAT Credit Rules, 2004 provides that the Assistant Commissioner or Deputy Commissioner can accept the document even if it does not contain certain details but contains other details as specified therein. There­fore, the original adjudicating authority is required to apply Rule 4A of Service Tax Rules, 1994 and Rule 9(2) of CENVAT Credit Rules, 2004 and examine the eligibility of CENVAT Credit of service tax paid and refund as the case may be. In this case, they find that this has not been done by both the lower authorities. Fur­ther, the appellant had given a statement showing the details of value of service received, service tax payable and amount of service tax paid by them during audit. Inspite of this, the original adjudicating authority observed that the copy of ledger was not produced. When detailed statement is produced, it has to be assumed that the ledger is supposed to reflect very same details. No efforts have been made to verify whether the cheque numbers given as proof of payment of service tax are verified. Therefore, they find that details given by the appellant as regards proof of payment of service tax are sufficient and the original adjudicating authority can get it verified in case of doubt. Therefore, the question of not having evidence cannot arise. Another observation made is that the appellant was required to produce self certified cop­ies of documents which they have failed to do.
 
Decision:
The appeal was partly allowed.

Conclusion:
 
We have faced litigation from the department on this point. They have issued numerous show cause notices saying that the refund of port services will not be allowed as the person is not authorized by port authorities. We have pleaded that the authorities are not issuing authorization as well as it is procedural requirement. When the service tax is paid and service is used in export of goods then substantial conditions are fulfilled, the refund should be granted to us. But the department has disallowed the same. Even the Commissioner (Appeal) has also not granted refund to us. Now, this new case law will be favorable to us. We hope that the department might grant refund to us for old cases. Now, new law has been changed and any person operating in port area will be termed port services. But the department has come up with new allegation that the assessee is registered under BAS, BSS and not under port services. By the time, the decision will come; the law has changed once again. Under the new regime of negative list, there is no classification of service. The department will come out with a new objection and it will not be settled before CESTAT. Although the Government has announced to reduce litigation but the field formation is no mood to reduce the same.
 

***********

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com