CASE STUDY

Prepared By:
CA. Rajani Thanvi
Sukhvinder Kaur, LLB [FYIC]

Introduction: -
 
The Notification No. 17/2009-ST dated 07.07.09 (earlier 41/2007-ST dated 06.10.2007) grants refund of service tax on the specified services used in export of goods by the exporter. However, it was easier said than done. The refund claims were denied by the Original Authority on the basis of many technical issues. We also written a series of articles titled “Johnny and service tax refund” to bring the grievances of the exporters. The issues involved are that certification on Original invoice is not as per the Notification; Individual refund claim is less than Rupees Five Hundred, the other charges and services were not mentioned in the CHA invoice, the licence number of the CHA was not mentioned on the invoice and so on. Now, some of the issues are being decided in favour of the Assessee-exporter and the case under study is one such case. 

M/s Lodha Offset Limited and Others v/s Deputy Commissioner, Central Excise, Jodhpur
[Order-In-Appeal no. 30-42(CB)ST/JPR-II/2011, dated: 31.01.2011]

 
Brief facts of the case: - 

• Appellants (which are 13 in number) are assessees who are exporting their finished goods. They have filed claims for claiming refund of service tax paid on specified services on which exemption by way of refund has been granted under Notification No. 17/2009- ST dated 7.7.2009. 

• The Department issued show cause notice to the appellant proposing to deny their refund claims. The refund claims were rejected by the Adjudicating Authority for various reasons. 

• Hence, appellants have filed appeals before the Commissioner (Appeals). 

Appellant’s Contentions: - 

1. Port Services:It was submitted that in the impugned order it has been held that “..a service to be classified as port service should satisfy the definition of the said service prescribed in the Finance Act, 1994. Authorisation of the service provider by the port authorities is necessary for a service to be classified under Section 65(105)(zn) of the Finance Act, 1994 in respect of the relevant time. Lack of such authorization disqualifies a service to be a port service…”.

In this regard, the appellant had submitted that the port authorities were not issuing the authorization letter and as such the service provider were not registered under the same. They were compelled to register under BAS, BSS. It was submitted that the definition of port services was amended from the Budget 2010 in which it is clarified that all the services which are rendered within a port is covered under the category of port services. Referring to the definition of Port services, it was contended that the port services provided entirely in the port area is covered under the same. The only condition for any service to be a port service is that it is to be rendered within a port or other port. In this case also the services are provided within the port area hence these are very much covered under the category of Port Services.
 
Further, the clarification given in TRU letter no. 334/1/2010-TRU dated 26.02.2010 relating to the above provisions was referred and it was submitted that it was clear from above that the definition of port services have been amended in order to remove difficulties of non classification of service provided at the port under the port services and of non-issuance of authority/permission letters by Port authorities to a service provider authorizing him to undertake a particular task.
           
Thus, it is clear from the TRU letter that the port authorities were not issuing the authorization letter and as such the service provider were not registered under the same. Thus, the appellant submit that there is no dispute that the services are not provided in the port area. It is clear from TRU letter that nobody was registered under the port services as authorities were not issuing the authorization letter. It was mandatory to register under port services that the person should be authorized by port authorities. As such, nobody was registered under port authorities. This was anomaly rectified by the Board. Following the same, the refund should be allowed to exporters as all the services were provided in the port area only. It should not denied on the ground that the service provider is not registered under port services where board is also clear that at that time nobody was registered under port services. As the basic fundamentals of this scheme i.e. service is provided in relation to export goods, service tax is paid and exporter has utilized the same, are fulfilled then the refund should be granted. 
 
The appellant further submit that in the impugned order the learned Adjudication officer has held that the present refund claims pertain to the period of Oct, 09 to Dec, 09 when the amendment of definition of Port services was not in force and as such, Board’s Circular was applicable for the services provided after such amendment and not before. In this regard, the appellant submit that ratio of above circular and amendment is clear that port authorities were not issuing authorization to any person. When no authorisation is issued then they cannot take registration in port services. But the nature of service like THC charges, fork lift charges etc. tells that these are provided in port areas. Hence the refund should be granted to us.
 
In the impugned order, it is further held that the ratio of case law of Cbay Systems is not applicable as the facts and circumstances are different. It is alleged that in the present case, registration certificates of the service providers were not sought to be verified, the issue was that the documents submitted with the claims of refund do not indicate if the service provider has provided services which satisfies the statutory definition of such services so that it can be ascertained that the service is not one which is not a service specified under the Notification.
 
In this regard, the appellant submits that the services rendered by the service provider were provided at the port area and was utilised by the appellant-exporter in relation to export of their goods. Therefore, the basic condition was satisfied and the said service was satisfying the statutory definition of such service. Thus, the refund could not be denied to the appellant on this ground.
 
The learned Adjudication officer is denying the applicability of case law of Commissioner of C. Ex, Ahmedabad v/s AIA Engineering Ltd in appellant’s case on the ground that the said case was decided on the basis of ratio given in Macro Polymers Pvt Ltd v/s CCE, Ahmedabad [2010 (019) STR 0679 (Tri-Ahmd)] wherein the fact of payment of terminal handling charges and repo charges to JNPT port authorities were records. But no such evidence is records in the present case. The facts of the cited cases has been held to be different from that of the appellant’s case.
 
In this regard it is submitted that the learned adjudication officer did not accept the ratio of this decision. He tries to distinguish the same on one pretext or another by saying that above decision is based on some other decision in case Marco polymers limited and in that decision evidence was produced that payment was made to port authorities. When the appellant is relying upon a decision then gist of that decision should be discussed. But saying that, this decision has relied upon some other decision and that the facts of that decision is not applicable in the instant case, shows that learned adjudication officer is not able to distinguish the case law but does not want to follow the same. Such an approach renders the order-in-original as totally erroneous.
 
Further, it is held that many invoices on which refund has been claimed under port services mention the payment of service tax under business auxiliary service or business support service. For allowing refund the service has to be one from the services specified under the Notification.
 
In this regard, the appellant submit that these services have been availed at port and thus will be covered in the definition of port services. The mere fact that these service providers are not registered under this category would not be a reason to deny the credit. It has been held in the case ofCbay Systems (India) Pvt Ltd Vs CCE, Mumbai [2010-TIOL-1188-CESTAT-MUM]that while granting the refund to exporters on taxable services, it is simple required that the services are received and used for export. The verification of registration certificate as to under which category the service provider is registered is not required. Thus, applying the ratio of this decision, refund of these services, being availed at port, should be allowed to the appellant.
 
As such, nobody was registered under port authorities. This was anomaly rectified by the Board. Following the same, the refund should be allowed to exporters as all the services were provided in the port area only. It should not denied on the ground that the service provider is not registered under port services where board is also clear that at that time nobody was registered under port services. As the basic fundamentals of this scheme i.e. service is provided in relation to export goods and also in port area, service tax is paid and exporter has utilized the same, are fulfilled then the refund should be granted.  However, this explanation is not accepted by the learned Adjudication officer.
 
In the impugned order, the ratio of the case laws of Bajaj Tempo Ltd andCCE, Mumbai  v/s Manish Engineering was held to be not applicable in appellant’s case on the ground that the said case laws were in respect of admissibility of Cenvat credit which does not compromise of the peculiarities if the Notification. In this regard it is submitted that the learned adjudication officer brushed aside these case laws saying that these are related to Cenvat credit and are not applicable in this case. In this regard, the appellant submit that he has not followed the ration of these cases and simply tried to distinguish the same. Such an approach is totally erroneous and such an order is liable to be quashed.
 
The order in original says that services rendered by the service providers do not fall under the purview of Port services as they are neither the ports on which the Major Port Trust 1963 Act applies nor the other ports which are governed by the Indian Ports Act, 1908. In this regard it is submitted that the definition of port services was proposed to be amended from Budget 2010 and has been changed. In the Budget it was clarified that all the services which are rendered within a port is covered under the category of port services. The definition will read as follows:-
 
Port services “means any service rendered within a Port or other port, in any manner.”
 
Thus, the port services provided entirely in the port area will be covered under the same. The order is passed taking the view that service provider should be a port according to the provisions of section 65 (81) of the Finance Act, 2004. But the section 65(82) ibid clearly says that any service which is provided and rendered within the port area is covered under Port services. In this section it is nowhere provided that service provider must be a Port or other Port. The only condition for any service to be a port service is that it is to be rendered within a port or other port. In this case also the services are provided within the port area hence these are very much covered under the category of Port Services. Hence contention of the learned adjudicating authority that the service providers do not fall under the purview of Port service is not tenable as there is no such requirement in the provision of section 65(82).
 
Further it is stated in the order in original that the invoices issued by the service providers on which exemption is claimed, do not mention-

1. Whether the service provider is registered under the provisions of Finance Act, 1994 under the category of ‘Port Services’ falling under section 65(105)(zzl) of the Finance Act, 1994.,
2. Whether the service provider has been authorized by the concerned port for providing ‘Port Services’,
3. Name of the Port where the services have been provided,
4. The amount of Service Tax paid/payable by the service provider under Port Services.

 
In respect of above it is submitted that these conditions are also saying the same fact that the service provider should be a port but this is not required in the law as it merely says that services should be rendered within a port. As such the services which are rendered within the port are to be considered as port services. The nature of services, rendered for the THC charges, B/L charges, OCF, ARB, CRO etc., also clarifies that these are relating to export and provided within the area of port. Further the above mentioned conditions are not provided in the notification no. 17/2009-ST hence they are not liable to fulfill these conditions. Hence the order alleging that the above mentioned conditions are not fulfilled is not tenable and liable to be quashed. Since the major condition i.e. services are to be provided within the port/other port is fulfilled by the appellant as such the refund should be granted.
 
It is further held by the learned Adjudicating Authority that the requirement if authorization of the service provider by the Port authorities is to satisfy the coverage of a taxable service under Port services as it is the requirement as per the statutory definition of the said taxable service. A service lacking authorisation ceases not to be a taxable service during the period such definition of the said taxable service is legally in force. It may fall in other taxable service category. In this regard it is submitted that the services rendered clearly underlines that these are port services but since authorities are not issuing authorisation, hence nobody was registered under the same. But to meet the end of justice as well as per ration of decisions, the refund on port services should be granted.
 
The appellant further submit that in the impugned order, the learned Adjudicating Authority has held that “Further, regarding the submissions of the assessee that “the shipping lines are executing one ‘Continuity Bond’ with the ‘Port’ and that on acceptance of such bond; they are carrying out operation of handling of containers at port. Therefore, this is a sort of authorization by the Port”. 26. I find that it the application for refund which can be considered for refund and not the documents submitted in support of such claim. The service provider’s document serve the purpose of examination of the correctness of the claim of refund made in the application for refund. I find that for grant of refund, the claimant has to make a claim as such i.e. claims cane be considered in manner it has been submitted. A claim made under the specified service of CHA/Port or any other service cannot be granted under the specified service of Terminal Handling charges. ……….I hold that the claims made as a specified service which is not Terminal Handling charges shall be dealt with as the specified service claimed and not any other specified service.
 
In this regard, the appellant submit that this finding is irrelevant and is erroneous as no such averments were made in the reply to the show cause notice by the appellant. Therefore, the impugned finding is required to be set aside.
 
The appellant further submit that the most of invoices included the terminal handling charges. The refund on the same is allowed irrespective of classification of services. But the learned adjudication officer did not allow the refund claim on the same. He maintained that the exporter has claimed the same under the head “port services”. It should be separately claimed under “Terminal Handling charges”. Such an approach is totally erroneous. The “Terminal Handling Charges” is not separately classified under the service tax act. Hence, the category is to be written as per classification in invoice only. But when the Government has allowed the refund irrespective of the classification then the refund should be allowed to us. Following the same, the refund should be allowed on “Terminal Handling charges”. 

2.  Refund claim not filed within Limitation: It was submitted that the order in original says that the claim was to be filed within one year from the date of export. The said period has already been passed as such their claim attracts bar of limitation. Moreover the statutory requirement of certification is that the invoice bill or challan should contain the certification as stipulated, their submissions do not fulfill the said statutory requirement, hence their contention is not acceptable and the claims filed by the exporter shall be rejected. The said claim that was filed by the exporter on 30.06.2010 and the same was within the time limit prescribed in the Notification 17/2009. Just the original invoices not submitted by the appellant the refund claim was found to be incomplete by the department which has been filed later on. But this cannot be the basis for saying that the claim was now time barred. The certification was just a procedural part that was finally completed by the appellant. The date of calculating the bar of time limit will remain the date on which refund claim has been filed for the first time.  The cases relied by the appellant in this regard are as under: 

- COMMISSIONER OF C. EX., DELHI-I Versus ARYA EXPORTS AND INDUSTRIES [2005 (192) E.L.T. 89 (Del.)]
-DURALINE INDIA PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, GOA [2009 (237) E.L.T. 689 (Tri. - Mumbai)]
- SUPER SPINNING MILLS LTD.  Versus COMMISSIONER OF C. EX., COIMBATORE [2007 (219) E.L.T. 958 (Tri. - Chennai)]
- IN RE: SUN PHARMACEUTICALS INDUSTRIES LTD. [2004 (171) E.L.T. 509 (Commr. Appl.)]
- SIMPLEX GLOBAL IMPEX Versus COMMISSIONER OF C. EX., NAGPUR [2002 (145) E.L.T. 470 (Tri. - Del.)]
- SUPER SPINNING MILLS LTD. Versus COMMISSIONER OF C. EX., COIMBATORE [2009 (15) S.T.R. 614 (Tri. - Chennai)]
 
It was submitted that All the above referred cases say that the date of filing the refund claim will be the date on which the refund claim was originally filed and not the date when some additional documents were added to the refund claim. Further the non submission of original documents is just a procedural mistake on the behalf of the appellant as the photocopy of the same was filed with the refund claim and there was no any intention to not submitting the original documents as the same were filed subsequently. As such the refund claim cannot be denied on such grounds. The appellant submit that they have paid the amount of invoice after one year when the refund claim was filed. There was no intention for not giving the proper certificate. 

3.   CLAIMS OF REFUND LESS THAN RS. 500/- - Noticee submitted that it is wrongly alleged that their refund claim is below Rs. 500. Reference was made to clause (h) and was submitted that herein the refund claim means a total of all the invoices/shipping bills filed for the refund claim. The clause specifies that when any refund claim for the services utilised in the course of export has to be filed, the total claim should not be below Rs. 500. The assessee has filed the total claim for the services used in the course of export as Rs. 16055/- which is greater than Rs. 500. 

Reference was also made to point No. 2 clause (b) of the Notification was submitted that the clause (b) says that service tax exemption will be claimed by the manufacturer- exporter on the services availed during the course of export in Form A-1. It was submitted that starting para of the Form A-1 clarifies the intention of the Government that the refund has to be seen in total. If the same was not the intention of the Government there was no need to start the form like this. If the refund has to be seen per shipping bill or per invoice there was no need to have the total of the refund claim. The format that is prescribed in the Form A-1, annexure to the Notification also give the columns as S. No. Details of the goods exported on which refund of the service tax has to be claimed etc. There are a number of details require in the table.
 
Referring to the Format prescribed it was submitted that it also specifies that the details of all the shipping bills/ invoices/ services are required. The total of all these together should exceed Rs. 500 for claiming a refund claim. If anywhere the intention was to see the Rs. 500 limit per service/ invoice or shipping bill then there was no requirement to have the details of all the shipping bills / invoices together. As through this Notification the time limit of claiming the refund has also been extended to one year, this also clarifies that the intention behind the Notification is to have refund claim of exports under various shipping bills/ invoices together. Otherwise the Government would have said as and when the export is done under a shipping bill or invoice the refund of the same could be claimed. In this case the Rs. 500/- limit per invoice or shipping bill could be seen. But as this is not the intention of this Notification a refund claim would consist of the total of shipping bills or the invoices. Therefore understanding the aim of the Notification their refund claim exceeds Rs. 500.
 
It was further submitted that if if the contention of the show cause notice, that the refund should be per service, is accepted for the sake of argument only, then also a refund claim will be meant as all taxable service. As recently in the case of M/s Sri Venkateshwara Precision Components Vs CCE, Chennai (Dated: August 9, 2010) that if the legislature is not clear for the meaning of a term than the term used in a singular form can be used in plural form as according to the General Clause Act. Therefore it is clear that in case where the word used in singular term than it can mean in plural.
 
It was also submitted that the above analogy of the notification is also accepted in the case of M/s. Chandni Crafts by the learned AdjudicatingAuthorityin theorder in original no. 12/2011-R(ST EX.) dt. 31.01.2011 in which it is mentioned that,
 
“I find that the issue of the claims less than rupees five hundred occurring at Para 2(h) of the Notfn has been interpreted by the undersigned in the earlier adjudications to mean the same with reference to a specific claim in respect of a specified service received and used for export of goods under a shipping bill. However, on 03.01.2011, this office has received a letter from the Central Excise Commissionerate Hqrs., Jaipur-II vide letter dated 28.12.2010, wherein the following observations of the Commissioner on the representation of Marudhara Inudstries Association, Jodhpur were communicated-
 
‘total claim of refund should not be less than Rs. 500/- as per para 2(h) of the said notification and hence views of AC, jodhpur does not appear to be correct that each bill of each service is to be checked if it is more than Rs. 500/-‘
 
Accordingly, the said provisions have been relooked. By a harmonious reading of the relevant provisions of the Notfn I find that the said provisions refer to total of the claim in respect of specified services. I, therefore, hold that the allegations of the show cause notice in this regard are not sustainable. Hence, total of the refund claim in respect of specified services is admissible if the same is not less than rupees five hundred.”
           
It is clear from the above decision that the limit of Rs. 500 will be reckoned in respect of total refund claim not in respect of per service. When the adjudication officer has himself has accepted this position then the refund should be sanctioned to us. 

4.  CONDITIONS LAID IN NOTIFICATION IN RESPECT OF CHA SERVICES NOT FULFILLED: The Noticee submitted that in the show cause notice it is alleged that the invoices of the CHA do not contain the details of all the charges incurred by the CHA, whether or not the charges reimbursable. In this regard, it is submitted that no other charges have been collected by the CHA other than those mentioned in the invoice. The CHA has charged only the amount that has been collected; no other amount has to be reimbursed by the Noticee. It was submitted that all the conditions prescribed in Notification no. 17/2009 were fulfilled as the invoices of the CHA contained all the details. 

It was submitted that in the last condition of clause (i), it is written that the exporter should declare all the other charges paid to CHA whether or not relating to export goods. Hence, the noticee have enclosed the certificate duly signed by exporter alongwith the refund claim. Thus, all the charges have been collected by CHA in his invoice. No other charges, whether reimbursable or not, collected by CHA from us relating to export goods. It is further submitted that no prudent man will mention the charges which is not incurred as well as collected in his invoice. CHA will always charge the expenses incurred by him and will not give from his pocket. The exporter will pay him only the charges which are billed to him.
 
It was submitted that it was further alleged in the show cause notice that exporter have not submitted the details of other taxable services provided by the said custom house agent and received by the exporter, whether or not relatable to export goods with their claim of refund. In this respect it is submitted no other taxable services has been provided by CHA and received by us, whether or not relatable to export goods. Noticee have received only the services which are mentioned and specified in the invoice issued by the service provider which has already been submitted with the refund claim. As such no other service has been provided other than for which the bill is raised. While looking to the clause no. 2 of above table for conditions for CHA which requires that Exporter shall produce the details of other taxable services provided by the said custom house agent and received by the exporter, whether or not relatable to export goods. In their case the Noticee cannot produce the details of other taxable services as no other service has been received by them accept those mentioned in the invoice. Therefore, they have fulfilled all the conditions as mentioned in the notification no. 17/2009-ST dt. 07.07.2009 as regard to specified services. Further, it was submitted that if there are other charges then the service tax should have been paid on the same and exporter must have claimed the refund of the same. So, there was no benefit to exporter by hiding this expenses as alleged by the show cause notice. 

5.  Goods Transport by Road:- The order in original has been passed saying that, “Moreover, the assessee is a person liable to pay service tax as such, they have not made payment of service tax in accordance with the provisions of the Finance Act, 1994. Moreover, a person liable to pay service tax under section 68 of the Finance Act, 1994 has been barred to claim refund of the service tax so paid in terms of the provisions of Paragraph 2(a) of Notification No. 17/2009-ST dated 07.07.2009. The said provisions are reproduced below:

‘the person liable to pay service tax under section 68 of the said Act on the specified service provided to the exporter and used for export of the said goods shall not be eligible to claim exemption for the specified service.’
 
Further, Proviso 1(c) of the Notification No. 17/2009-ST dated 07.07.2009 provides that the exemption of service tax on the taxable services received by an exporter and used in export of the said goods is available, provided the exporter claiming the exemption has actually paid the service tax on the specified service to its provider. I find that the exporter were themselves liable to pay service tax and were required to pay service tax to the credit of Government of India themselves and not to its provider, as such, claims of refund of service tax in respect of GTA services is not admissible in view of the above provisions also. Find that the assessee have not made any submissions in this regard, as such, the allegation brought out in the Show cause notice are established and claims of refund in respect of GTA services made by them is not admissible.”
 
The above allegation made in the order in original is erroneous as there was no such allegation in the show cause notice. Hence the adjudicating authority has traveled beyond the show cause notice which is not proper and legal. It has been held in the case of JAY AR ENTERPRISES Versus COMMISSIONER OF CUSTOMS (SEA), CHENNAI [2007 (210) E.L.T. 459 (Tri.-Chennai)].That the order travelling beyond the allegations of show cause notice is not sustainable. The verdicts of hon’ble Chennai Tribunal are produced as follows:-
 
“Order beyond show cause notice not sustainable - DEPB credit - Denial of - Show cause notice not proposed the denial hence, direction for debit of DEPB credit is beyond the scope of show cause notice, hence, not sustainable.”
           
The analysis of above decision makes it clear that where the order is passed on the grounds other than what are proposed in the show cause notice, it is   not legally viable. Similar decision was given in the following cases:- 

1. VIKRAM JAIN Versus COMMISSIONER OF CUSTOMS, BANGALORE [2006 (205) E.L.T. 735 (Tri. - Bang.)]
2. BHAGWATI SILK MILLS Versus COMMISSIONER OF CENTRAL EXCISE, SURAT [2006 (205) E.L.T. 182 (Tri. - Mumbai)]

In the above referred cases, it was held that the order should align with the allegations of the show cause notice. If the order is not passed in accordance with the grounds specified in the show cause notice, it is not tenable in the eyes of the law. Hence the ratio of the above mentioned cases is applicable in the instant case also and the impugned order is liable to be quashed.
 
Without prejudice to the above, if we accepted the contention of the order in original that the exporter was the person liable to pay service tax according to law and the payment of service tax is also not traceable in the invoices according to the law, Hence refund is not admissible in view of Proviso (c) to paragraph 1 and clause (a) of Paragraph 2 of Notification No. 17/2009-ST than also the refund is not denaiable. The clause is produced below-
 
2)     Notwithstanding anything contained in sub-section (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service.
 
This above clause says that the service tax has to be paid as per the rate specified in Section 66. This clause will be applicable only on the person who is liable to pay service tax under this Act. This sub-section applies in those cases where the service tax has to be paid by the persons other than service providers. The recipients of services rendered by the goods transport agency are covered by this sub-section. The above was discussed in the reply to the show cause notice also. But the order in original has not discussed the submissions of the appellant. Such an order is not speaking and liable to be set aside. Reliance is placed on case of ARBINDO LIQUORS LIMITED Versus COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2001 (133) E.L.T. 631 (Tri. - Mumbai)] whereinit has been held that the order which narrates only what the Assistant Commissioner said and not what the assessee said, is not justified. Such an order does not give anyinsight to the further appellate authority as to the correctness of the findings. It is for this reason that the principles of natural justice require that any order made in adjudication or in appeal, should be a “speaking” order.Thus, in the light of these decisions, the impugned order is not justified and is liable to be set aside.
 
Further the clause no. (c) of the para 1 of the notification says -
 
(c) the exporter claiming the exemption has actually paid the service tax on the specified service to its provider;
 
In the cases other than where the recipient of the service is made liable to pay the service tax, the person paying the service tax to the government exchequer and the person bearing the incidence of that service tax/exporter are two different persons. Out of the services specified in this notification, all the services other than GTA services fall this category where the service tax is paid to the government exchequer by the service provider.  Thus, this condition has been added in order to ensure that the person claiming the refund of service tax has borne the incidence of the same in order to avoid the unjust enrichment. As such, this clause (c) is applicable on the cases where the person paying the service tax to government and the exporter are two different persons. But in case of the GTA services, the person paying the service tax and the person who has borne the incidence of this service tax are the same – i.e. exporter. Therefore the intention of the government behind adding this service in the refund claim along with the clause is to grant the refund to the exporters for the service tax paid on the GTA services.
 
Further the clause (a) of the Paragraph 2 of these says-
           
(a) the person liable to pay service tax under section 68of the said Act on the specified service provided to the exporter and used for export of the said goods shall not be eligible to claim exemption for the specified service;
 
The above clause says that the service provider (who is liable to pay service tax as per provisions of section 68) providing the specified services to the exporter, will not be able to claim this exemption. The analysis of this clause makes it clear that this clause is applicable where the service provider is liable to pay the service tax [i.e. under section 68(1)], then the service provider will not be able to claim the refund eg. If the CHA has provided the services to the exporter, he is the person liable to pay service tax under section 68(1); then he will not be able to claim the refund of the service tax in terms of this provisions. Only exporter can claim the service tax refund. The analysis of this clause (a) makes it clear that this clause is not applicable in the cases where the person is liable to pay the service tax under section 68(2). In other words, where the service recipient is liable to pay the service tax or where the person liable to pay the service tax and the exporter are the same, this clause is not applicable. Thus, this clause is not applicable on us as we are the person liable to pay the service tax and the exporter too.
 
Further, if the intention of the Government was to deprive the benefit of service tax refund on GTA services to the exporter, clause (zzp) would never have been included in the list of specified services as in this notification. This is because in such cases, the person liable to pay the service tax is the exporter only except in cases where the exporter is a proprietor. Further the only intention of the government to add such clauses is that the provider of the services (like CHA, C&F agent, courier agency, etc.) does not claim refund saying that the services are used in the course of export. The intention of the government is to promote the exports and provide maximum benefits to the exporters only. All this was discussed in the reply to the show cause notice but the same was discussed. It has been held in the case of Commissioner of Central Excise, Bangalore v/s Srikumar Agencies [2008 (232) E.L.T. 577 (S.C.)] that an order passed without considering the submissions of is a non speaking order and a non speaking order is not legally viable in the eyes of law. Similar decision has been given in the following cases:-
 
Wipro Computers Ltd. v/s Commissioner of Customs, Chennai[2001 (135) ELT 450 (Tri.-Chennai)]
 
Commissioner of C. Ex. & Cus., Vapi v/s Vishesh Dhatu Industries [2008 (222) ELT 337 (Bom.)].
 
Further the order in original has been passed that the appellant has not fulfilled the conditions that are prescribed in the Notification No. 17/2009-ST Serial No. 6 regarding the goods transported by road.
 
It was submitted that according to this clause the certification has been made by the assessee that the bill pertains to goods transport by road and they have used these services for export only as mentioned in condition no. (i). To comply with this condition the appellant had produced a certificate saying that the benefit of notification number 18/2009-S.T has not been taken. But the adjudicating authority has not considered this certificate while passing the order.
 
Further the condition (ii) says that the details relating to export of goods as specified in invoice are specifically to be mentioned in the lorry receipt and the corresponding shipping bill. It is submitted that Export Invoices shows details relating to export goods viz. Container No., Destination Port/Port of Discharge, and these details are also shown in corresponding shipping bills and the documents pertaining to transportation services. These descriptions show that the service that has been mentioned in the invoice has been used for these exported goods. This easily helps us to make out that the service of goods transport by road is used in the export of goods. The invoices of the same show the port of departure and dispatch. As such all the conditions under the Notification no. 17/2009-ST dt. 07.07.2009 has been fulfilled. All these submissions were already discussed while replying to the show cause notice. But the submissions made by the appellant were not adhered to by the adjudicating authority and the order in original was passed rejecting the refund claim. Further in a recent decision in the case of The Commissioner of Central Excise Vs. M/S Cable Corporation of India [2010-TIOL-607-HC-MUM-CX]  it is said that while deciding the case court is under an obligation to record reasons, however, brief, the same may be as it is a requirement of principles of natural justice. Non observance of the said principles would vitiate the judicial order. Therefore on the above ratio the refund claim should be allowed. 

6. PROPER CERTIFICATION NOT DONE: -The appellant submit that in the impugned order it has been held that the documents submitted with the claim as mentioned in Point G of the show cause notice do not bear certification in terms of Para 2(i) of the Notification by the exporter. 

In this regard, the appellant submits that the certification as prescribed in the Para 2(i) of the Notification No. 2 (i) of the Notification No. 17/2009-ST was done by the person authorized. It is submitted that in the reply to the show cause notice the appellant have submitted that as the appellant is a partnership firm so partner himself is required to certify all the documents and the appellant have submitted the original documents/invoices issued by service provider after due certification done by partner of the appellant. As such the appellant have fulfilled all the other conditions as prescribed in the notification regarding refund claim relating to specified services.Further the clause no. (F) contains the condition of certification of the fact that exporter or the authorized person should certify that the specified service has been used for export of goods and the service tax on the same has been paid. For this condition the appellant have produced each and every original invoice with refund claim and a certification stamp was also placed on each invoice. The certification was also signed by the authorised person on each original invoice. The certification done by the authorised person said-
 
“It is certified that the service mentioned in this bill/ invoice / challan issued in my/ our name pertaining to ---------- (name of taxable service) has been received by me/ us, that we have paid the value of the service and the service tax thereon and that the said taxable service has been fully utilized in export of goods covered under shipping bill/airway bill no.--------dated---.”   
 
In the above stamp the appellant have filled the name of taxable service with the shipping bill number and the date. After that the Authorized Signatory also signed the invoices. As such it is clear from the above that appellant have fulfilled all the conditions as prescribed in paragraph 2(i) of the Notification no. 17/2009-ST dt. 07.07.2009.
 
It is submitted that when the appellant have made categorical submission that certification was given then it cannot be held that there was no certification in terms of Para 2(i) of the Notification. Therefore, the impugned order is liable to be set aside. 

7.  GENERAL INSURANCE SERVICE:The appellant further submits that the impugned order in original is rejecting our refund claim on the ground that receipt issued by the insurer is towards open policies and hence is not a document issued by insurer for payment of insurance premium specific to export goods covered under the specific Shipping Bill for which the refunds have been claimed. The impugned order is denying the refund on further ground that the premium receipts submitted are not evidencing the payment of service tax related to export goods. In this regard it is submitted that there is a practice of issuing a running policy. The allegation of the impugned order that the refund of service tax paid on premium of running policy is not allowed is not sustainable on the grounds that it is not feasible neither for the insurance company nor for the exporters to obtain separate policy per consignment. It is a practice throughout India and all the exporters are following the same. A blanket policy is taken for a large amount. It is specifically for the export of the goods and consignment wise amount is debited in that policy. When the policy comes to an end, it is renewed by the exporter. This is a general practice throughout the country. However, there is no doubt regarding availment of these services and service provider being a public sector undertaking is duly depositing the service tax. The appellant submits that the practice being followed by the trade at large, cannot be held as not tenable in terms of the conditions prescribed under the Notification. The trade practices which are largely followed everywhere cannot be ignored and the refund claim which is a substantive right cannot be denied on the said ground. Moreover, the blanket policy taken is specifically for export of finished goods of the appellant-exporter and not for any other purpose. The said policy is specifically relating to export of goods of the appellant and therefore, it cannot be said that premium paid is related to open policy. 

It is additionally submitted that the amount paid as a premium can be correlated with the export consignment as the premium is debited as and when the export is made. In this regard, the appellant have enclosed in the refund claim the ARE-1/Shipping bill wise amount debited in the marine policy taken by the appellant.
 
The appellant further submit that in their reply to the show cause notice they had submitted that with every shipping bill the claim for the service tax on particular insurance policy is filed. The document that is attached is authorized by the appellant, which showed it is in their name. There was seal of the insurer M/s United Insurance Limited, also the declaration of the item etc. was there on the invoice of M/s United Insurance Limited. The marine insurance policy no. has been specifically mentioned. The vessel no. also prescribes that the insurance policy is for which goods.
 
It is submitted that when an export is made a receipt is issued by the appellant themselves and they debit the sum for which export is made. The receipt is even sealed by the insurance company. Further, the opening, closing balances and declared value of the goods is also shown in the receipt. The description of the goods, its quantity and invoice which it covers is also mentioned in the receipt. So it indicates to the specific goods exported. While filing the refund claim the original marine insurance policy was also enclosed. From all these documents, correlation of the insurance premium paid with the exported goods can be established. Therefore, the impugned order is not sustainable and is liable to be set aside.
 
Further the order passed without giving reasons of decision is not justified in the eyes of law. In the instant case various case laws referred in the reply of show cause notice has not been discussed and distinguished by the learned adjudicating authority. Hence the ratio of above cited case should be allowed and the impugned order is liable to be set aside.
 
It has been held in the case of Commissioner of Central Excise, Bangalore versus Srikumar Agencies [2008 (232) E.L.T. 577 (S.C.)] that an order passed without considering the submissions of the appellant is a non speaking order and a non speaking order is not legally viable in the eyes of law. The verdicts of hon’ble Apex court are produced as follows:-
 
“Appellate Tribunal’s order - Non-speaking order - Facts not analysed in detail in impugned order by Tribunal - Disposal of appeals by mere reference to decisions not proper way to deal with appeals - Applicability of decision cited by Revenue not considered - Appeals involving different goods - CESTAT ought to have examined cases individually and articles involved - Manner of disposal not proper - Impugned order set aside - Question referred to Larger Bench of Supreme Court not answered as matter remitted to CESTAT for fresh decision by appropriate Bench - Section 35C of Central Excise Act, 1944. - By clubbing all the cases together and without analyzing the special features of each case disposing of the appeals in the manner done was not proper. [para 6]”
 
To support their contention the appellant rely on the case of WIPRO COMPUTERS LTD. Versus COMMISSIONER OF CUSTOMS, CHENNAI [2001 (135) E.L.T. 450 (Tri. - Chennai)]  wherein the Tribunal held “An order not discussing evidence submitted by assessee nor technical literature or trade opinion a non-speaking order and not a legal order - Section 35A of Central Excise Act, 1944”and therefore, the order passed by the Dy. Commissioner is in violation of principles of natural justice and is required to be set aside. 

8.  Technical Testing & Analysis:- Ihe refund of service tax paid on Technical Testing and analysis in case of the invoice issued by M/s Vimta Labs it was alleged that the same does not specify the export goods to which the services can be related. In this regard it is submitted that the invoice of M/s Vimta Lab containing Purchase order number, our export invoice shows the same number. The invoice contains the details of shipping bill, bill of lading, description of the goods as well as this number. All the details match with the documents of export that has taken place. Even the refund under this category was allowed to the appellant in oio no. 539/2009-R (ST-EXP) under the Notification No. 41/2007 dated 6.10.07. The conditions in both the notifications are also same. The clauses under Notification 17/2009 were referred and it was submitted that there is no specific condition required to be fulfilled for technical and testing analysis. The batches no. in the invoice and shipping bill link the goods with the export. All this was discussed in the reply to the show cause notice but neither the same was discussed nor the refund of the same was allowed. Further the order passed without giving reasons of decision is not justified in the eyes of law. In the instant case various case laws referred in the reply of show cause notice has not been discussed and distinguished by the learned adjudicating authority. Hence the ratio of above cited case should be allowed and the impugned order is liable to be set aside. 

It has been held in the case of Commissioner of Central Excise, Bangalore versus Srikumar Agencies [2008 (232) E.L.T. 577 (S.C.)] that an order passed without considering the submissions of the appellant is a non speaking order and a non speaking order is not legally viable in the eyes of law. The verdicts of hon’ble Apex court are produced as follows:-
 
“Appellate Tribunal’s order - Non-speaking order - Facts not analysed in detail in impugned order by Tribunal - Disposal of appeals by mere reference to decisions not proper way to deal with appeals - Applicability of decision cited by Revenue not considered - Appeals involving different goods - CESTAT ought to have examined cases individually and articles involved - Manner of disposal not proper - Impugned order set aside - Question referred to Larger Bench of Supreme Court not answered as matter remitted to CESTAT for fresh decision by appropriate Bench - Section 35C of Central Excise Act, 1944. - By clubbing all the cases together and without analyzing the special features of each case disposing of the appeals in the manner done was not proper. [para 6]”
 
To support their contention the appellant rely on the case of WIPRO COMPUTERS LTD. Versus COMMISSIONER OF CUSTOMS, CHENNAI [2001 (135) E.L.T. 450 (Tri. - Chennai)]  wherein the Tribunal held “An order not discussing evidence submitted by assessee nor technical literature or trade opinion a non-speaking order and not a legal order - Section 35A of Central Excise Act, 1944”and therefore, the order passed by the Dy. Commissioner is in violation of principles of natural justice and is required to be set aside. Similar decision has been given in the case of Commissioner of C. Ex. & Cus., Vapi v/s Vishesh Dhatu Industries [2008 (222) ELT 337 (Bom.)].
 
So the above order passed against the assessee is not tenable in law because the Learned Adjudicating Authority has not discussed the cases and the submissions that were relied on by the appellant
 
Further in a recent decision in the case of The Commissioner of Central Excise Vs. M/S Cable Corporation of India [2010-TIOL-607-HC-MUM-CX]  it is said that while deciding the case court is under an obligation to record reasons, however, brief, the same may be as it is a requirement of principles of natural justice. Non observance of the said principles would vitiate the judicial order. 

9. TRANSPORT OF GOODS BY RAIL:-It if further alleged in the show cause notice that the claimant is a person liable to pay service tax in respect of services received by them. It is also said that where freight is paid by them, in terms of Section 68(2) of the Finance Act, 1994 read with Notification 36/2004-ST. It was further alleged that the exporter has not fulfilled the conditions as laid down against the sr. No. 6 under Column (4) of the Table under paragraph (4) of the Notification No. 17/2009-ST dated 07.07.2009.   

The appellant has replied for the above allegation and stated that the Section 68 (2) says –

Section 68 Payment of Service Tax
 
(2)     Notwithstanding anything contained in sub-section (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service.

Further the Notification No. 36/2004 dated 31.12.2004 says that

In exercise of the powers conferred by sub-section (2) of section 68 of the Finance Act, 1994 (32 of 1994), the Central Government hereby notifies the following taxable services for the purposes of the said sub-section, namely:-

1. the services,-
2. in relation to a telephone connection or pager or a communication through telegraph or telex or a facsimile communication or a leased circuit;
3. in relation to general insurance business;
4. in relation to insurance auxiliary service by an insurance agent; and
5. in relation to transport of goods by road in a goods carriage, where the consignor or consignee of goods

So an analysis of the Notification 36/2004 says that the following services are notified for the clause (2) of Section 68. The services include service in relation to transport of goods by road in a goods carriage. But they have filed the claim for transportation by rail and not for goods transported by road. Therefore the allegation itself is not sustainable in law.
 
Further the conditions prescribed in S. No. 6 and column no. 4 are reproduced hereunder:-
 

6.

(zzp)

(i) Service provided for transport of said goods from the inland container depot to the port of export; (ii) Service provided to an exporter in relation to transport of export goods directly from the place of removal, to inland container depot or port or airport, as the case may be, from where the goods are exported.

(i) Exporter shall certify that the benefit of exemption provided vide notification number 18/2009-S.T. has not been claimed; and (ii) details, those are specified in the invoice of exporter relating to export goods, are specifically mentioned in the lorry receipt and the corresponding shipping bill.

 
The Finance Act 1994 defines (zzp) as to any person, by a goods transport agency, in relation to transport of goods by road in a goods carriage. But the refund claim filed by the appellant is under clause (zzzp) which says

to any person, by any other person other than Government railway as defined in clause (20) of section 2 of the Railways Act, 1989, in relation to transport of goods in containers by rail, in any manner;

Therefore the conditions prescribed in the S. No. 6 are not applicable to appellant as the assessee has transported the goods by using the services of railways. The details of the invoices (filed with the refund claim) also gives the description of service as transportation by Railways and it is classified as (zzzp) in the Finance Act, 1994. Further the invoices submitted by the appellant with the refund claim are of ICD, Bhagat Ki Kothi, Jodhpur which further clarifies that the services of goods transportation by rail are used in the process of export.
 
As the services of Goods transport by rail are used, the conditions prescribed under S. No. 7 will be applicable to appellant. The condition are-

7.

(zzzp)

(i) Service provided for transport of said goods from the inland container depot to the port of export, and (ii) services provided to an exporter in relation to transport of export goods directly from the place of removal to inland container depot or port or airport, as the case may be, from where the goods are exported

Invoice issued by the exporter in relation to export goods shall indicate the inland container depot or port or airport from where the goods are exported.

 
The appellant contends that the container number mentioned in the bills of the ICD, Bhagat Ki Kothi, Jodhpur can be correlated with the container number mentioned in the shipping bill. This shows that it belongs to the goods that are exported. It also clarifies that the services of railways are used in the process of export. The Notification 17/2009 is an amended form of Notification 41/2007. Further the conditions of the Notification 41/2007 are same as Notification 17/2009 as far as relates to transportation of goods by Rail. So when refund was allowed under Notification 41/2007 for goods transport by rail, refund under this Notification cannot be denied. In their own case, your good office has allowed the refund claim vide oio 544/2009-R (ST- EXP) on Transport of goods in containers by rail. The copy of the order is already annexed. The same ratio is squarely applicable here also.

But the order in original does not says anything for the above allegation and reply. Hence it is proven a non speaking order which not justifiable in the eyes of law. Further in the case of ARUNACHAL PLYWOOD INDUSTRIES LTD. Versus COLLECTOR OF C. EX.[ 1989 (43) E.L.T. 695 (Tribunal)] it was held that:

Order - Adjudication - Non-speaking order - Order passed without giving reasons is liable to be set aside and matter remandable for reconsideration. [para 4]

Therefore it is clear that the order which not giving any reasons and findings on the reply is a non speaking order and such an order is liable to be quashed and refund should be allowed.
 
Findings of the Commissioner (Appeals): -
 
The Commissioner (Appeal) held as under:
 
(i)         Original invoices of service providers were not certified:
 
The Commissioner (Appeal) found that it is procedural requirement that invoices of service providers should be certified by the exporter/authorized person and appellants certified individual invoice and there was some error which was rectified by a consolidated letter, and in some cases appellants instead of certified individual invoice made a consolidated letter, and in some cases appellants instead of certified individual invoice made a consolidated chart of all the invoices and certified it therefore the Commissioner (Appeal) held that the appellant have fulfilled the condition substantially therefore refund claim cannot be rejected on this ground. Findings of the Adjudicating Authority set aside.
 
It was further found that the Adjudicating Authority has also not accepted the correction to the certificate on the ground that this amendment was filed after one year from the date of export. It was noted that in this regard, the appellant had contended that since the refund claim was originally filed within one year from date of export but the deficiency was removed later on therefore for limitation clause original date of filing should be considered. The Commissioner (Appeal) found force in appellant’s contention and held that so long as original claim was within time-limit, its amendment cannot be held to be time-barred.
 
(ii)        Refund claim was less than Rs. 500/-:
 
Refund of service tax was rejected by the Adjudicating Authority on the ground that individual invoice of the service provider was less than Rs. 500/-. The appellant had contended that the limit of Rs. 500/- is applicable shipping bill wise for which, individual claim could have been filled.
 
The Commissioner (Appeal) found that Para 2(h) of the Notification No. 17/2009-ST dated 07.07.2009 stipulates “no refund claim shall be allowed if the same is for an amount less than Rupees five hundred” and further it is mentioned in point 10 of Form A1 that “details of the refund claim (separately for each shipping bill)”, which means that the total amount of a refund claim should not be less than Rs. 500/- and it has no reference with the individual invoice. Hence, the findings of the Adjudicating Authority set aside and appellant’s contention accepted.
 
(iii)       Rejection of refund of service tax paid on Terminal Handling Charges:
 
The Commissioner (Appeal) noted that the refund of Terminal Handling charges was rejected by the Adjudicating Authority on the ground that Service Tax on Terminal Handling charges was paid under the category of Port/CHA or any other service therefore it could not be refunded under Terminal Handling Charged.
 
The Commissioner (Appeal) found that it is specified in Sr. no. 16 of the table of Notification No. 17/2009-ST that payment of Service Tax paid on services commonly known as Terminal Handling Charges classified under any sub-clause of clause (105) of Section 65, which clearly reveals that payment of Service Tax paid on Terminal Handling Charges should be refunded irrespective of its classification, accordingly, the findings of the Adjudicating Authority on this respect were set aside and the refund of Service Tax paid on Terminal Handling Charges is allowed.
 
(iv)       Services for which refund was claimed were not covered under the port services:
 
It was noted by the Commissioner (Appeal) that the appellant have claimed the refund of service tax paid on the services namely Origin Doc, manual documentation, Business Auxiliary Service, Business Support Service, Express release fees, B. l. charges and inland haulage under the port services which have been rejected by the Adjudicating Authority by holding that these services were not covered under port services. It was noted that the appellant had contended that the questioned charges were covered under port charges.
 
The Commissioner (Appeals) found that the appellant had paid Service Tax under the category of Business Auxiliary services and Business Support Services not under the port charges therefore payment of service tax on Business Auxiliary services and Business Support services cannot be refunded by covering these services in Port charges. Therefore, it was held that the Adjudicating Authority has rightly rejected the refund of service tax paid on Business Auxiliary services and Business Support services.
 
(v)        Rejection of refund of service tax paid on CHA services:
 
The Commissioner (Appeal) noted that the claim of service tax paid in respect of CHA services was rejected by the Adjudicating Authority on the ground that number and date of the invoice issued by the exporter, details of all the charges collected by the customs house agent from the exporter in relation to export goods and details of other taxable services provided by the said CHA agent was not mentioned in the invoice issued by CHA as required under Notification No. 17/2009-ST (Sr. No. 11 of the table) and also on the ground that it was not indicated that service provider was a CHA. It was noted that in this regard the appellant had submitted the sample invoice of CHA and also submitted that in reply to show cause notice they have submitted that no other charges have been collected by the CHA and also no other charges have been collected by the CHA and also no other service has been provided by CHA.
 
The Commissioner (Appeal) found that invoice no. 47 and shipping Bill no. 989 and category as Customs House Agent has been mentioned in sample invoice No. 2116 dated 27.10.2009 issued in favour of appellant namely Adarsh Guar Gum Udyog by services provider namely Sai Shipping Services Pvt Ltd and further appellants given certificate that no other charges was collected by the customs house agent from the exporter in relation to export of goods and further no other taxable services were provided by the CHA and received by the exporter.
 
Thus, the Commissioner (Appeal) held that the appellant have fulfilled the condition substantially therefore refund claim cannot be rejected on this ground, and further the contention of the Adjudicating Authority that the said certificate should be mentioned on the invoice issued by CHA is not tenable. Thus, the Commissioner (Appeal) set aside the findings of the Adjudicating Authority in this regard and held that refund should be allowed for the service tax paid to CHA and similarly other invoices should also be checked at the time of sanction of consequential claim in view of this order.
 
(vi)       Rejection of refund of service tax paid on GTA services:
 
The Commissioner (Appeal) noted that the refund of service tax paid on the transport of export goods by road have been rejected by the Adjudicating Authority on the ground that this service tax was paid under Section 68 of the Finance Act, 1994 and Service tax was not paid to Service Tax provider. It was noted that in this regard, the appellant had contended that gist of Para 2(a) of the said notification was that refund can be claimed only by the exporter and not by service provider/a person liable to pay service tax.
 
The Commissioner (Appeal) found that Para 2 (a) of the Notification stipulated that the person liable to pay service tax under Section 68 of the said Act on the specified services provided to the exporter and used for export of the said goods shall not be eligible to claim exemption for the specified services. The Commissioner (Appeal) observed that in the instant cases, appellants have paid the service tax on GTA services as being person liable to pay service tax on GTA service by virtue of application of Section 68 readwith Rule 2(i) (d) (v) of Service tax Rules, 1994 but at the same time the appellants being exporter of the goods therefore, the said restriction is not applicable to the appellants.
 
It was further observed that Para 2 (c) of the said Notification stipulates the exporter claiming the exemption has actually paid the service tax on the specified service to its provider, in the instant case Service tax has been paid by the exporter directly in Govt account instead of GTA as per Section 68 of the Finance Act, 1994, since exporter paid the Service Tax as per Rules therefore the findings of the Adjudicating Authority that exporter not paid Service Tax to GTA is not tenable.
 
It was further observe that Notification 18/2009-ST dated 07.07.2009 exempts the exporter from payment of Service tax to GTA. It was noted that in the instant case exported paid the Service tax on the services of GTA as discussed above which clearly shows that appellant have not availed the benefit of exemption Notification No. 18/2009-ST. Accordingly, the findings of the Adjudicating Authority were set aside and it was held that appellants are eligible for refund of the Service Tax paid on GTA service.
 
(vii)      Rejection of refund of service tax paid on Insurance services:
 
The Commissioner (Appeal) noted that the appellant have claimed the refund of service tax paid on the General Insurance Business services which have been rejected by the Adjudicating Authority by holding that appellant have not submitted specific documents. It was noted that in this regard, the appellant had contended that it was prevalent practice that open policy of large amount has been taken.
 
The Commissioner (Appeal) found that Notification No. 17/2009-ST stipulates that the documents issued by the insurer for payment of insurance premium shall be specific to export goods and shall be in the name of the exporter but the appellant did not furnish the document which is specific to export goods, thus condition of said Notification is not fulfilled therefore the benefit of notification is not available to the appellant. It was therefore, held that the Adjudicating Authority has rightly rejected the service tax refund of service tax paid on General Insurance Business Services.
 
(viii)      Rejection of refund of service tax paid on Technical Testing and Analysis services:
 
The Commissioner (Appeal) noted that the appellant have claimed the refund of service tax paid on the Technical testing and analysis services which have been rejected by the Adjudicating Authority on the ground that there was no any reference that the said service have been used in export goods. It was noted that in this regard the appellant had contended that there was clear nexus and submitted the sample copy.
 
The Commissioner (Appeals) found that contract no. is mentioned in sample invoice No. GEN/1794/09-10 dated 24.07.2008 issued in favour of appellant namely Sarda Gums & Chemicals along and the same invoice no is also mentioned in Shipping Bill, thus, there is clear nexus between the said service and export goods. Therefore, refund should be allowed and similarly other invoices should also be checked at the time of sanction of consequential claim in view of this order.
 
 
Decision of the Commissioner(Appeals):-
 
Appeals disposed off accordingly.
 
Conclusion:-
 
Lastly, the exporter has been granted relief on many grounds. Though the refund is denied to port and insurance charges yet the relief is granted on CHA, fumigation, THC, technical testing, issue of endorsement, refund amount less than Rs. 500/- etc. All these issues have been settled in favour of assessee. We hope that he will get the refund in the last. 

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