CASE STUDY

Prepared By: CA Neetu Sukhwani
 & Arpita Birla

Introduction:- A Show cause notice was issued to the assessee alleging that the refund claim filed by the assessee was not admissible on certain grounds. The refund claim was of Rs. 1, 03, 741/-for the period of 01.01.2010 to 31.03.2010 in respect of service tax paid on services received and used for export of Goods under the provisions of Notification no. 17/2009-ST dt. 07.07.2009. The assessee filed reply to the above show cause notice and order was passed by the Deputy Commissioner, partly allowing the refund claims filed in respect of service tax paid on Terminal Handling Charges and freight on transportation by rail amounting to Rs. 9185/- and rejecting the refund claim amounting to Rs. 94,556/-. The assessee thereafter filed an appeal to the Commissioner Appeals who have further allowed refund of service tax on certain points discussed in detail hereunder.

M/s ADARSH GUAR GUM UDHYOG v/s CENTRAL EXCISE & SERVICE TAX DEPARTMENT, JODHPUR
 [ORDER IN ORIGINAL NO. 64/2011-R (ST EX.)]

Relevant Legal Provisions:
 
i)              Notification no. 17/2009-ST dt. 07.07.2009.
 
 
Issue: - Following issue was made before the Commissioner Appeals:
 
Whether service tax refund for export of Goods be denied on account of procedural lapses?
         
Brief Facts:- The brief facts of the case are:-
M/S ADARSH GUAR GUM UDYOG are a partnership firm having Service Tax Code No. AABFA8118LST001 and had filed the refund claim of Rs. 1, 03, 741/-for the period of 01.01.2010 to 31.03.2010 on 30.12.010 in respect of service tax paid on services received and used for export of Goods under the provisions of Notification no. 17/2009-ST dt. 07.07.2009.
 
The Department issued show cause notice alleging that the refund claim was not admissible on the following grounds:
 
A)            Original documents of service provider not submitted.
B)            Fumigation of export cargo loaded into container or otherwise does not satisfy the statutory definition of cleaning activity under section 62(24b) of the Finance Act, 1994. Therefore the same is not covered under the scope of service defined under section 65(105)(zzzd) of the Finance Act, 1994.
C)         Services are not classifiable under port services as the service providers do not satisfy the definition of port services since evidence of authorisation by port authority is not traceable on the document of the service provider, Hence, the service is not classifiable as port service.
D)         Documents submitted with the claims where total amount of claims in respect of services used for the export of goods under the cover of relevant shipping bill are more than 0.25% of the FOB value of such export.
E)         Service not covered under the taxable service of custom house agent.
F)         Conditions of specified service of customs house agent-Details of all the charges, whether or not reimbursable, collected by the custom house agent from the exporter in relation to export goods not mentioned in the service provider's document.
G)         Conditions of specified service of custom house agent-Details of other taxable services provided by the said custom house agent and received by the exporter, whether or not relatable to export goods have not been submitted by the exporter.
H)         Claims have been filed under the specified service of Terminal Handling Charges however, service tax payable shown in the service provider’s document shows no service tax payable on terminal handling charges.
I)          Arithmetical error in the summation of the claims.
J)          Entire amount of service tax payable on an invoice is claimed for multiple times.
K)         Only service tax, and not Education Cess and the S.H.E. Cess, is granted exemption under the notification.
 
 
 
Assessee’s Contentions:-
 
Assessee made following submissions before the Commissioner (Appeal):-
 
1)            The appellant submit that the Order-In-Original passed by the learned adjudicating authority is erroneous to the extent it is denying the refund claim of Rs. 94, 556/- and is liable to be set aside.
 
2)            Original Invoices:In the impugned order-in-original it has been held that the documents as pointed out in the show cause notice are not original as the said invoices are not signed by the person issuing it. In this regard, it is submitted that the appellant have submitted the self certified original invoices alongwith their refund claim and all the conditions prescribed in Para 2 (i)(D) of the Notification have been fulfilled by the appellant. 
 
It is further submitted that the learned Adjudicating Authority has not taken into consideration the submission of the appellant that some of the service providers which are paper less companies and are issuing e-invoices or computer generated invoices. These service providers are sending the invoices through e-mail to all its assessee and do not provide any hardcopy. These e-invoices can be downloaded from the website of the service providers. The appellant have taken a printout of these invoices which contain all the specifications as required in the Notification. It is submitted that as such these e-invoices are original invoices but are not in physical form. Even it is submitted that the service tax and excise duty is also deposited online. The challan is specified document for taking credit under Rule 9 of Cenvat credit rules. No signed copy of the same is generated. The computer printout is taken as valid duty paying document and credit is allowed on the same. Hence the refund of computer generated invoice should be allowed. This is the era of paperless working and computerization. These documents are being accepted by all the departments like bank, DGFT, custom etc. Hence the same should be accepted by us also.
 
It is further submitted that the said service providers are levying and paying service tax in the department and they have taken permission from their jurisdictional Deputy Commissioner for issuing the e-invoices. Therefore, when once the Service Tax Department has accepted the generation of e-invoices then at the time of claiming refund, the objection cannot be raised that such e-invoices were not invoices as per Rule 4A(i) of the Service Tax Rules, 1996 as they do not bear signature of the issuing person.
 
Further, credit has been allowed on the basis of the computer generated invoices in the case of ASARWA MILLSVersus COMMISSIONER OF C. EX. & CUSTOMS, AHMEDABAD-I [2004 (176) E.L.T. 515 (Tri. - Mumbai)]. In this case, the appellant have taken the credit on the strength of computer generated invoices of the suppliers which was denied to them by the adjudicating authority. However, the Tribunal allowed the credit by saying that the credit is duly allowed to the assessee even on the basis of the computer generated invoice. Allowing the credit may be equated to the allowing of refund. Thus, when the credit can be allowed on the strength of computer generated invoices, refund should also be allowed.
 
It is further submitted that the learned Deputy Commissioner has relied upon the Order-in-Appeal No. 43-97/CB/ST/JPR-II/2011 dated 31.01.2011 passed by the Commissioner (Appeals) wherein it has been held that it is specified in Para 2 (i) (D) of the Notfn that original invoices should be submitted along with the refund claims. In this regard, it is submitted that the learned Deputy Commissioner in the impugned order has not specified the name of the assessee against which the said order was passed and that whether the facts and circumstances of the said case where same as that of the appellant’s case.
 
It is submitted that the fact of charging of service tax and the payment of service tax by the appellant exporter to the service provider and the fact of deposition of service tax in the Government Exchequer by the service provider are not in dispute. It is also not disputed that the appellant have accepted the services of the service providers for exporting their goods. Therefore, as substantive conditions are fulfilled the refund claim cannot be denied to the appellant-exporter on technical grounds. In this regard, reliance is placed on Modern Process Printers [2006 (204) E.L.T. 632 (G.O.I.)]. In this case, verdicts of Government of India are produced as follows:-
 
“EXIM - Rebate - Procedural infractions of notification/circular are to condoned if export have taken place actually and substantive benefit should not be denied.”
 
The analysis of this decision makes it clear that the where main/substantive condition is satisfied, the intended benefit should not be denied to the beneficiaries. 
 
3)            FUMIGATION OF EXPORT CARGO LOADED INTO CONTAINER OR OTHERWIRSE DOES NOT SATISFY THE STATUTORY DEFINITION OF CLEANING ACTIVITY UNDER SECTION 62(24b) OF THE FINANCE ACT, 1994. THEREFORE THE SAME IS NOT COVERED UNDER THE SCOPE OF SERVICE DEFINIED UNDER SECTION 65(105)(zzzd) OF THE FINANCE ACT, 1994:
The appellant further submits that the learned Deputy Commissioner has rejected the refund claim with respect to fumigation of export containers on the ground that they are neither commercial buildings or industrial building or premises thereof nor the same can be termed as factory, plant or machinery, tank or reservoir of such commercial or industrial buildings or premises thereof.
 
In this regard, the appellant submit that the learned Deputy Commissioner has only considered the latter part of the definition of “cleaning activity” given under the Finance Act, 1994. It is submitted that the former part/line has not been considered. It is submitted that the relevant definition is as under:
 
62 (24b) of finance act, 1994 “cleaning activity” means cleaning, including specialised cleaning services such as disinfecting, exterminating or sterilising of objects or premises, of —
 
(i) commercial or industrial buildings and premises thereof; or
 
(ii) factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and premises thereof, but does not include such services in relation to agriculture, horticulture, animal husbandry or dairying;
 
It is submitted that the appellant had submitted that a bare reading of above definition makes it clear that term cleaning activity includes cleaning of objects/things or premises of commercial/industrial buildings or factory, plant or machinery etc. This definition specifically provides for the specialized cleaning services pertaining to both movable and immovable properties. Since disinfecting/fumigation of objects or products or things, the fumigation of export containers is duly covered in this definition. Thus, the finding of the impugned order that the fumigation of export containers does not fall under ambit of this definition is not tenable.
 
It is submitted that in the afore-said definition, the phrase used is “…object or premises……” Thus, the use of the word or in between specifies that both object which is a movable property and premises which pertains to immovable property is covered under the cleaning activity. Thus, the container being an object is covered under the said definition.
 
4)            In continuation, it is submitted that the learned Deputy Commissioner has in the impugned order held that the Board Circular No. 132/1/2011-ST dated 12.01.2011 has clarified the position regarding the Notification No. 41/2007-ST dated 06.10.2007 which, as per settled law as also as per the above said clarification of the Board, cannot be used to interpret the scope of service defined under Section 65(105) (zzd) of the Finance Act, 1994. It is submitted that Notification No. 17/2009-ST, dated 07.07.2009 with regard to fumigation/cleaning services provides as under:

It is submitted that the Board vide Circular no. 132/1 / 2011 – ST dt. 12.01.2011 has clarified that the Fumigation of export cargo including agricultural/horticultural produce, whether loaded into containers or otherwise, does not satisfy the statutory definition of ‘Cleaning Activity’ under Section 65(24b) of the Finance Act, 1994. But at the same time the circular further clarifies that the exemption to the cleaning of containers services will be continued as the notification specifically provides for exemption of the same. The relevant para of circular is reproduced hereunder:-
 
 (b) As a matter of abundant precaution, Government had also issued Notification No. 41/2007-ST dated 6.10.2007, as amended by Notification No. 42/ 2007-ST dated 29.11.2007 to exempt specialised cleaning services of containers used for export goods.  This was in line with the international practice of making the export consignments free from taxation in the country of its origin. However, the wordings of this circular cannot be used to interpret the scope of service defined under Section 65 (105) (zzzd) of the Finance Act, 1994.
 
The analysis of this circular clarifies that:-
 
·                     the wordings of the circular cannot be used to interpret the scope of service defined under section 65(105)(zzzd) of the Finance Act, 1994. Thus, even though this circular says that the fumigation of export containers is not included in the definition of cleaning services, yet one cannot take shelter of this circular to justify the classification of cleaning activity service as defined in sub clause (zzzd) ibid.
·                     Further, this circular is mainly issued to clarify that exemption on the fumigation of export containers will be continued irrespective of the fact that as per this circular, the fumigation of export containers is not covered under the definition of cleaning activity services. In order to justify this, the circular further states that the exemption has been granted to the fumigation of export containers in order to line up with the international practices.
·                     Going ahead, giving exemption means to makes something tax free. Thus, exemption has been granted on the basis of assumption that it is otherwise taxable. This exemption has been granted on basis of the fact that the service tax is being paid on the fumigation of export containers all over India.
·                     In the nutshell, if the service provider has charged the service tax on the fumigation of the export containers and it is borne by the exporter; its refund is duly allowed under the provisions of notification no. 42/2007-ST as superseded by notification no. 17/2009-ST dated 7.7.2009.
·                     If we read the circular as a whole, the ultimate intention of the board is to give benefits to the exporters by allowing refund but the instant show cause notice is going contrary to the same. Thus, it is not sustainable. Following the analogy of circular of allowing refund to exporters, we request your good honour to extend the same to us.
 
A harmonious reading of this Notification and the Circular No. 132/1/2011-ST dated 12.01.2011 clarifies that under the Refund scheme the intention of the Government all along was to grant refund of service tax paid on Fumigation of containers. The refund was granted irrespective of the fact whether the fumigation of service was included in the statutory definition. It is submitted that the fumigation of container was covered under the definition of cleaning activity and is also covered under the scope of Notification No. 17/2009-ST. 
 
5)            Further, the appellant submit that in the impugned order, the learned Deputy Commissioner has held that since the service activity of fumigation of export containers does not fall in the scope of service defined under Section 65 (105) (zzzd) of the Finance Act, 1994, it is not a service specified under Notification No. 17/2009-ST irrespective of the words used in the relevant entry of the table under the said Notification.
 
In this regard, it is submitted that here the issue is not regarding the interpretation of the cleaning service but the grant of refund claim of services specified under Notification No. 17/2009-ST. It is submitted that the refund is being denied on fumigation of container despite the fact that the wording of the Notification clearly provides for the refund on the same. It is submitted that when the legal provisions are clearly worded then the same should be accepted on the face value and literal interpretation is required to be given to the said provisions. Therefore, the clear wordings of the relevant part of the Notification No. 17/2009-ST clearly provides that fumigation of containers is a specified service covered under cleaning service and the intention of the Government was also to provide the refund on the same. It has also been held in the case of TRUTUF SAFETY GLASS INDUSTRIES Versus COMMISSIONER OF SALES TAX, U.P. [2007 (215) E.L.T. 14 (S.C.)] that where the language of a provision is plain and unambiguous, it is to be read as such, no other meaning is to be taken out. The verdicts of hon’ble Supreme Court are given as follows:-
Interpretation of statute - Court cannot read anything into a statutory provision which is plain and unambiguous - A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. [para 16]
Similar decision is given in the case of COMMISSIONER OF WEALTH-TAX Versus HASHMATUNISSA BEGUM [1989 (40) E.L.T. 239 (S.C.)] wherein it is decided as follows:-
“Interpretation of statute - Literal rule - Courts to apply the meaning regardless of result, if meaning of statutory interpretation plain. -
One of the pillars of statutory interpretation viz., the literal-rule, demands that if the meaning of the statutory Interpretation is plain, the Courts must apply regardless of the result. [para 11]”
Thus, it is ample clear that where the language of any provision is clear no other meaning is to be taken out. In the instant case also, the language of notification no. 17/2009 clearly allows the refund of service tax paid on fumigation of export containers. Thus, the interpretation taken out by the learned Deputy Commissioner is not justified and is liable to be set aside. The refund should therefore be allowed.
 
 
6)            It is submitted that although the circular has referred the notification no. 41/2007-ST but the ratio of same is applicable in the new notification no. 17/2009-ST also as the clauses of both the notifications relating to cleaning activities are same and both are meant for refund of service tax to the exporters. Moreover the conditions imposed in notification no. 41/2007-ST are also not there in the notification no. 17/2009-ST. Both the clauses are given hereunder for ready reference:-

From the above table it is clear that there is not any difference in the language of both the notifications in respect of taxable services eligible for refund claim. Even the later notification no. 17/2009 has been simplified and the conditions pertaining to the fumigation services have been removed. This clears the intention of the government that refund procedure should be made easy so that maximum benefit may be extended to the exporters. In the light of intention of the government, the refund claim should be allowed to the appellant and the impugned order should be set aside.
7)            Port Services: In thisregard, the appellant submits 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 is 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. 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 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 TRU letter no. 334/1/2010-TRU dated 26.02.2010 has clarified the above provisions as under:-
           
The definitions of the taxable services, namely the ‘Airport Services’ section 65 (105) (zzm)], the ‘Port Services’ [section 65 (105) (zn)] and the ‘Other Port Services’ [section 65 (105) (zzl)] are being amended to provide that,-
(a) all services provided entirely within the airport/port premises would fall under these services; and
(b) an authorization from the airport/port authority would not be a pre-condition for taxing these services.
 
It has been further clarified in Annexure B to the said TRU Letter which is reproduced below for the ready reference:-
 
1. Services provided in an airport or port
            1.1 Two services, namely ‘port services’ and the ‘airport services’ were introduced in Budgets 2001 and 2004 respectively. The services provided by minor ports covered under ‘other ports’ became taxable from 2003. The purpose behind creating these services was that since a number of activities are undertaken within the premises of ports and airports, it would be easier to consolidate all such services under one head.
            1.2 It was reported that divergent practices are being followed regarding classification of services being performed within port/airport area. In some places, all services performed in these areas [even those falling within the definition of other taxable services] are being classified under the port/airport services. Elsewhere, individual services are classified according to their individual description on the grounds that the provisions section 65 A of Finance Act, 1994 prescribes adoption of a specific description over a general one.
            1.3 Further, both the definitions use the phrase ‘any person authorised by port/airport’. In many ports/airports there is no procedure of specifically authorizing a service provider to undertake a particular activity. While there may be restriction on entry into such areas and the authorities often issue entry-passes or identity cards, airport/port authorities seldom issue authority/permission letters to a service provider authorising him to undertake a particular task. Many taxpayers have claimed waiver of tax under these services on the ground that the port/airport authority has not specifically authorised them to provide a particular service.
            1.4 In order to remove these difficulties, the definitions of the relevant taxable services are being amended to clarify that all services provided entirely within the port/airport premises would fall under these services. Further, specific authorisation from the port/airport authority would now not be a pre-condition for the levy.
 
It is 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 January, 2010 to March, 2010 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. Here it is not disputed that the services are not availed on port. Also, it is not disputed that the payment is not made and service tax is not suffered by the exporter. It is also not disputed that these services have been availed in respect of export. All these facts clearly indicate that the substantial conditions of this notification have been fulfilled.  Hence the refund should be granted to them.
 
            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 impugned order is rigidly interpreting the decision cited by them. In the case of Cbay Systems it was held that it is not in the hands of the exporter to verify the registration certificate of the service provider. Similarly, in the case of appellant, the impugned order is stating that they were to verify that the service provider is authorized by the port. In both the cases, the discrepancy is at the end of service provider. When it is held that the exporter need not verify the particulars at the end of service provider, this analogy is equally applicable in the instant case also and the appellant need not be asked to verify that the service provider is authorized by the port. It is even not required as the services were provided by the service provider at the port area and was utilised by the appellant-exporter in relation to export of their goods and there was scope of doubt that the service provider was not authorized by the port. 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 have 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 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.
 
In the impugned order, the ratio of the case laws of Bajaj Tempo Ltd and CCE, 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 allowing Cenvat Credit (when inputs are used in manufacture of final products) inspite of certain discrepancies on the face of invoice indicates that substantial benefit is to be allowed even when certain procedural lapses are there. Similarly, when the major condition of export is fulfilled, refund should be allowed irrespective of the fact that there are certain procedural lapses. But this has not been done and refund has been denied by mechanically interpreting the decisions cited by the appellant. Such an approach is totally erroneous and such an order is liable to be quashed.
 
It is further submitted that the learned Deputy Commissioner has sought to reject the refund claim to the appellants with regard to Port services by relying upon another order of the Commissioner (Appeal)  vide OIA No. 43-97/CB/ST/JPR-II/2011 dated 31.01.2011. It has not been provided as to in which assessee’s case, this order was passed. It is submitted that when an Order was existing in favour of the Appellant on the same facts and relating to same Notification but for previous period, then the same was required to be followed in granting of refund for the subsequent period. But the learned adjudication officer did not discuss the aforesaid order at all. It seems that the impugned order-in-original intends to reject the refund claim and hence he did not follow the aforesaid order of Commissioner (Appeal) in favour of party.
 
It is further submitted that in the impugned order it has been held that  authorisation of the service provider by the port authorities is necessary for a service to the classified under the Section 65(105)(zn) of the Finance Act, 1994 in respect of the relevant time. It was held that lack of such authorisation disqualified a service to be a port service, hence, the arguments of the exporter are not tenable.
 
In this regard, reliance is placed on the judgment of the Larger Bench of the Tribunal in the case of Western Agencies Pvt Ltd v/s Commissioner of C. Ex., Chennai [2011-TIOL-538-CESTAT-MAD-LB] wherein it was held that Authorisation under Section 42 of the Major Port Trust Act, 1963 is not essential to attract levy of service tax under port service. On this basis, the Stevedoring service in a major or minor port was held to be a port service within the meaning of this expression defined under Section 65(82) of the Finance Act, 1994.
 
It was held as under:
 
“The term “port service” defined by the Finance Act, 1994 bringing any service provided by a “port” or “other port” “in relation to vessels or goods” to the service tax net does not make any difference if such service is also provided through any person authorised by the port or such port. If stevedoring service is accepted to be a service not provided by “port” or “other port”. The term “port service” defined by Finance Act, 1994 shall defeat the purpose of the service tax law. The facilities provided by a port to render the stevedoring service performable brings such service to the scope of service tax. The statutory definition suggesting the service provided “in any manner” serves the purpose of serving the clients of stevedores in relation to goods or services indirectly through stevedores. Therefore, the service provided by stevedores fall under the class of port services.”
 
It is submitted that in one case the Revenue has taken the stand that the services provided at port even without authorisation will be covered under the scope of Port Services but in another case (i.e. of the appellants), the Revenue is taking the same stand to deny the refund claim to the assessee. Thus, it is submitted that the Revenue cannot take one argument to cover a service under service tax net and use the same to deny benefit in another case.
 
It is submitted that the learned Deputy Commissioner has relied upon the judgment of the Tribunal in the case of Western India Shipyard Ltd v/s Commissioner of Central Excise & Service Tax, Goa [2008 (012) STR 0550 (Tri-Mumbai) and in Homa Engineering Works v/s Commissioner of Central Excise, Mubai [2007 (081) RLT 0313 (CESTAT-MUM)] wherein it was held that the assessee are not rendering services as authorised person by port as contemplated and covered in the definition of “port services” by interpreting the words “by the person authorized”.
 
In this regard, it is submitted that in this matter Larger Bench of the Tribunal has in the case of Western Agencies Pvt Ltd v/s Commissioner of C. Ex., Chennai  [2011-TIOL-538-CESTAT-MAD-LB] has held that “Authorisation under Section 42 of the Major Port Trust Act, 1963 is not essential to attract levy of service tax under port service”. The submissions regarding the judgment of the Larger Bench has already been made herein above by the appellant. Therefore, the decisions relied upon by the Deputy Commissioner are not applicable and the impugned order passed by relying upon the said judgments is also not sustainable.
Further, the appellant have submitted that the port charges include THC charges. It is mentioned in the aforesaid notification that the refund on THC charges will be allowed even if it falls under any category of service. Hence the same should be allowed to the appellant. But the Impugned order did not consider the submission and set aside the submission of appellant. Such an order is totally erroneous and liable to be set aside.
8)            CERTIFICATION BY SPECIFIED CHARTERED ACCOUNTANT: In the impugned order, it has been held that as per provisions of Notification No. 17/2009-ST, the details of the refund claim are required to be submitted separately for each shipping Bill. The learned Deputy Commissioner has not accepted appellant’s contention that the 0.25% has to be calculated considering the total amount sought in a refund claim.
In this regard, it is submitted that the Notification No. 17/2009-ST does not prescribe that the details of the refund claim are required to be submitted separately for each shipping bill. It is submitted that point A of the clause (i) of the paragraph 2 of the Notification specifically say that the refund sought under a claim is upto 0.25 % of the total declared FOB value on export. So the above point has made the point clear that 0.25 % has to be calculated considering the total amount sought in a refund claim. Therefore the assessee has rightly calculated 0.25% on the total amount they have claimed in the refund. Here the total amount is the total of all the shipping bills that are claimed in the refund.
Further after the clause (i) the clause (j) is written so the clauses will be read harmoniously. The clause (j) makes it clear that if the claim more than .25% of the declared value of export in a refund sought under the claim than the charted accountant certification will be required.
It is further submitted that the above analogy of the notification is also accepted in the case of M/s. Chandni Crafts by the learned adjudicatingauthorityin the order 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 Industries 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 term refund claim will be interpreted in respect of total refund claim not in respect of per service or shipping bill. When the adjudication officer has himself has accepted this position then the refund should be sanctioned to us. With regard to the allegation of refund claim more than 0.25% of FOB value the relevant paragraph 2(i) (A) of Notification no. 17/2009-ST dt. 07.07.2009 provides that, the refund claim will be allowed where,
“the total amount of refund sought under a claim is upto 0.25% of the total declared free on board value of export”
As the term refund claim is used in the above provision hence this will also be taken as total refund claim in light of above referred decision. The ratio of the above referred case is applicable in this case also and the word Refund claim wherever used in the notification will be interpreted as total amount of refund claim. Applying the same ratio the refund claim in this case also will be taken as total refund claim which is within the prescribed limit.
It is submitted that in their reply appellant had clearly submitted that as the Total FOB value mentioned in their claim is Rs. 11342490/- and the claim made by us is Rs. 21,353/-which is 0.19% of FOB value and the same is less than 0.25%.So there is no requirement of producing a certificate of Chartered Accountant as mentioned in the paragraph. Further if there was an intention of the Government to count one invoice as a claim for refund there was no need to prescribe annexures with the Notification. The assessee could file the claim for each service or invoice separately. There was no need to say in the Notification “the claim of refund” in place of these words, it should have been mentioned in notification as “the said service” or ‘the invoice”.
It is submitted that the learned Deputy Commissioner has not considered the submission of the appellant made hereinabove. No reasons have been given to reject the afore-mentioned submissions of the appellant in the impugned order. Moreover, the learned Deputy Commissioner has not given any reasons for not following his own order-in-original in the case ofM/s Chandni Crafts. Such an order is liable to be set aside.  
9)            CHA Services: In the impugned order, refund claim for CHA services is rejected on the ground that the service providers whose invoices the appellant have claimed refund under the specified service of CHA are not the said services as names of such services are not appearing in the shipping bill which is required to show names of such service providers. It was held that the appellant had not availed CHA services of the person issuing such invoices.
 
In this regard, the appellant submit that Notification no. 17/2009 prescribes the following conditions for granting of refund for CHA services:-

It is submitted that for the purpose of granting refund claim of service tax paid on Customs House Agent service, the above are the only conditions prescribed by the Notification. Therefore, the exporter claiming refund under this Notification required to fulfill only the conditions mentioned in the Column No. 4 as mentioned hereinabove. It is submitted that the Cargo Seatrans provides the services as Custom House Agent and collected Agency charges. Further, invoices of the service providers were submitted along with the refund claim which shows the Service tax registration no. and Category of Service i.e. Custom House Agent. The said invoices fulfil all the conditions mentioned in the Notification. Therefore, the refund claim cannot be denied to us.
 
It is submitted that in the impugned order, it has been held that the appellant have claimed refund of service tax on invoices issued by service providers under the specified services of CHA, who have not provided principle job CHA services as indicated in the shipping bills. It was found that such services cannot be CHA services as CHA services i.e. principal part of it have been provided by a person other than the issuer of the invoice on which refund is claimed. In this regard, the appellant submit that it is clear from the notification that CHA can provide number of services. He can provide the services which are relating to his business and he can provide the service which are in nature of reimbursement of expenses. Even the board circular B43/1/97-TRU dated 661997 has also clarified the same point. It was provided that CHA provides many services and charges in his bill. It was mentioned in te circular that the services of CHA are not limited to clearing of import and export of cargo. These include even packing, weighment, loading, unloading, bringing or removing the goods to or from the custom area (transportation), measurement of export goods, payment of statutory dues on account of octroi, destuffing, pelletisation, terminal handling, fumigation, drawback/DECC processing, survey/amendment fees, dock  fee, repairing and examination charges, landing and container charges, statutory labour charges, testing fees, drug control formalities, sorting/making/stamping/sealing on behalf of importer/exporter. He also incurs various charges like fork lift charges, taxi charges, Photostat and fax charges, bank collection charges, courier charges and various other charges. Thus it is clear from Board circular also that the CHA gives number of services and not limited to clearing of export and import of consignment. Hence the analogy drawn by learned Deputy Commissioner is totally erroneous. The CHA gives many services and refund on the same is admissible. As such, the impugned order is liable to be set aside and appeal should be allowed. 
 
It was further held in the impugned order that the appellant have not submitted the document i.e. the invoice issued by CHA specifying number and date of shipping bill, number and date of the invoice issued by the exporter relating to export goods, details of all the charged, whether or not reimbursable, collected by the CHA from the exporter in relation to export goods and details of other taxable services provided by the said CHA and received by the exporter, whether or not relatable to export of goods.
 
In this regard, the appellant submitted that the invoices furnished their refund claim were issued by the CHA and contain all the details as prescribed in the Notification. 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 us. The invoices of the CHA produced by us have fulfilled all the conditions as prescribed in the above table. It clearly shows the shipping bill number and date, exporter invoice number date as well as export goods. 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. It is further submitted that no other charges have been collected by the CHA other than those mentioned in the invoice and also no other service has been provided other than for which the bill is raised. The CHA has charged only the amount that has been collected; no other amount has to be reimbursed by us. Further the refund claim of the CHA charges under the Notification No. 41/2007-ST was also allowable. The NT- 17/2009-ST has been brought out amending the NT-41/2007 so refund claim of the CHA cannot be denied under this notification. Therefore all the conditions specified by the notification are satisfied. 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.
 
With regard to submission of details of other taxable services, it is submitted that no other taxable services has been provided by CHA and received by us, whether or not relatable to export goods. We 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 our case no other service has been received by us accept those mentioned in the invoice. We submit that no other charges have been collected by CHA except those mentioned in the invoices and no other services has been provided by said CHA. Therefore, we have fulfilled all the conditions as mentioned in the notification no. 17/2009-ST dt. 07.07.2009 as regard to specified services. Further, we submit 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 these expenses.
 
It is further submitted that refund claim in respect of the CHA was allowed recently in our own case in OIA no. 30-42(CB)ST/JPR-II/2011 dt. 31.01.2011 relating to the notification no. 17/2009-ST dt. 07.07.2009. While allowing the refund on the CHA services, it was held that invoices of service provider contains the invoice number with corresponding shipping bill number and further a certificate is given for the purpose that no other charge 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. So the conditions is fulfilled substantially therefore refund claim cannot be rejected on this ground. The verdict of the order is reproduced hereunder for your ready reference:-
           
“I hold 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 mention on the invoice issued by CHA is not tenable.”
 
Hence the going with the same the refund claim in our case is also allowable and the same cannot be denied on the contention that certificate should be mention on the invoice issued by CHA. It is submitted that these submission were made before their reply to the impugned show cause but the same have not been accepted by the learned Deputy Commissioner.
 
It is submitted that this Order-in-Appeal was relied upon and produced before the learned Deputy Commissioner. However, the learned Deputy Commissioner has not relied upon the same and has sought to reject the refund claim to the appellant with regard to CHA service by relying upon another order of the Commissioner (Appeal)  vide OIA No. 43-97/CB/ST/JPR-II/2011 dated 31.01.2011. It has not been provided as to in which assessee’s case, this order was passed.
 
It is further submitted that in the impugned order, it has been held that the ratio of the cases of AIA Engineering andCbay Systems relied upon by the appellant are not applicable as the facts and circumstances are not similar to the facts and circumstances of the appellant. By merely alleging that these decisions are not applicable, is not sufficient; this allegation is to be proved by the department which has not been done. Even the adjudicating authority was supposed to discuss and distinguish these decisions and then deny their applicability. But this has not been done. As such, a non speaking order is passed which is not sustainable. 
 
10)         Claims made under THC but Service is not THC: It is submitted that in the impugned order, the refund of service tax on Terminal Handling charges has been denied on the ground that the service tax is not paid on THC but are payable on BL charges. It was held that the amount of service tax payable on THC shown on the same invoices have been claimed separately under the description THC.
 
In this regard, the appellant submit that service provider has provided two services one is Port service like B/L services and another is Terminal Handling service to them. The service provider has issued single invoice for provision of both the services. The service tax was paid on both the services. The appellant have filed separate claims for Port services and for THC charges for which there is a single invoice raised. Therefore, it cannot be said that service tax is not paid for THC. It is submitted that these submissions were made in the reply of the appellant but were not accepted. It is submitted that a perusal of the invoices pertaining to the THC and Port charges raised by the service provider namely M/s Consol Shipping Services, M/s Eagletrans Shipping, M/s German Express Shipping and M/s Maritime Container Services will establish the fact of provision of both THC and Port services. Therefore, the impugned order rejecting the refund claim on THC is not sustainable. We submit that this issue has already been decided by office of Commissioner (Appeal) in our favour but the learned adjudication officer has not considered the same. Such an order is liable to be set aside. We request your good honour to allow the same following your earlier order-in-appeal.
 
 
11)       Education Cess: In the impugned order, the refund of education cess is being denied on the ground that there is no notification exempting Education Cess and SHE cess by way of refund under respective Finance Acts under which the Education cess and SHE cess are levied. The learned Deputy Commissioner has relied upon judgment in case of Balasore Alloys Ltd v/s CCE [2010 (20) STR 506 (Tri-Kolkata)] wherein reliance was placed on Final order no. 900A to 1143A/2009 EX (DB) dated 12.08.2009 passed in C. C. Ex v/s Jindal Drugs Ltd & Others were relied.
 
In this regard, the appellant submit that the learned Deputy Commissioner has not considered the contentions of the appellant that the notification no. 17/2009-St dt. 07.07.2009 allows the exemption to the specified services from the whole of the amount of service tax by way of refund. When the service tax itself is exempted then the issue regarding levy of Education cess and Secondary Higher Education Cess does not arise. In other words, if any notification provides exemption to a particular service than the amount of service tax payable thereon comes ‘Zero’ and consequently the Education Cess and Secondary & Higher Education Cess will also be zero as 2% and 1% of zero will always be zero only. As such in the instant case when service tax is exempted (by way of refund) then it is implied that the Education and Secondary & Higher Education Cess leviable thereon will also be exempted. The things will not be changed where exemption is provided by way of refund. Hence going with this analogy the refund of Education and Secondary & Higher Education Cess is allowable along with the service tax and the order-in-original denying the refund is liable to be set aside. The appellant further submit that the CBEC has issued circular no 134/3/2011 dated 8.4.2011 wherein it is accepted that the refund of Education cess and SHE cess will be allowed to the exporter. They have accepted our contentions which are stated above. Since the CBEC has accepted the contention, hence the refund should be allowed to us.  
 
12)       It is further submitted that the notification no. 17/2009-ST is issued proposing benefit of the refund of service tax to the exporter so that the export activities amplified. Recently Hon’ble Supreme Court has also said in the case of Commissioner of Customs (Preventive), Mumbai, Vs M/s M Ambalal & Co. (2010-TIOL-111-SC-CUS) that
 
“The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgment emphasize that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal Statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgments at all. The synthesis of the views is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption is liberal interpretation.”
 
Hence it is clear from the above that the notification which contains the beneficial exemptions and which is issued for the purpose of encouragement or promotion of certain activities should be interpreted liberally. The notification no. 17/2009-ST dt. 07.07.2009 also provides the beneficial exemption by way of refunding service tax on the specified services which were used in the export of goods. So it is encouraging and promoting the activities of export. Therefore the notification is to be liberally interpreted while granting the refund. But the learned adjudicating authority has interpreted the same very rigidly while passing the order. Such an order is liable to be set aside.
 
Further in the case of Government of India v/s Indian Tobacco Association [2005(070) RLT 0201 (SC)] the apex court held that
 
“an exemption notification must be construed having regard to the object and purport which the same seeks to achieve. It is also well-settled that an expression used in a statute should be given its ordinary meaning unless it leads to an anomalous or absurd situation.”
 
The above mentioned judgment clears the fact that an exemption notification must be interpreted in its meaning so that the purpose can be achieved for which the notification has issued. In the instant case the notification no. 41/2007-ST has been issued to provide benefits to the exporters so that they can be motivated and the export activities can be promoted.
 
18.       It is further submitted by the appellant that earlier in the notification no. 41/2007 dated 6.10.2007, a lot of conditions involved for getting the refund of service tax paid on specified services. Thus, the scheme simplified procedure of filing of refund claim under self certification was introduced. The Finance minister in his budget speech has said in clause 130 as under:-
 
“130.It is an international practice to zero-rate exports. To achieve this objective, a scheme was announced in 2007, granting refund of service tax paid on certain taxable services used after the clearance of export goods from the factory.  For some time now, the exporting community has been expressing dissatisfaction over the difficulties faced in obtaining such refunds. Several procedural simplifications attempted in the past have also not yielded satisfactory results. The solution seems to lie in placing greater trust on the claims filed by the exporters.  Keeping this in view, I propose to make the following changes in the scheme:
 
Services received by exporters from goods transport agents and commission agents, where the liability to pay service tax is ab initio on the exporter, would be exempted from service tax.  Thus, there would be no need for the exporter to first pay the tax and later claim refund.
 
For other services received by exporters, the exemption would be operated through the existing refund mechanism based on self-certification of the documents where such refund is below 0.25 per cent of fob value, and certification of documents by a Chartered Accountant for value of refund exceeding the above limit. 
 
Thus, it is clear from the above that the Hon’ble Finance Minister was of the view that the refund will be granted on the basis of self certification of the exporter. But we have seen that a number of conditions have been imposed and the refund is being granted by the department in the same way as was granted earlier in notification 41/2007. This was not the intention of the Finance minister. This is clear from his budget speech referred above.
Further, the same is clear from explanatory notes to budget 2009-10. The relevant para is reproduced below:-
(IV). Refund Scheme for Exporters:
Notification No.41/2007-ST dated 06.10.2007 provides for refund of service tax paid on services, which though not in the nature of input services, are relatable to export goods. The scheme is being revamped, to ensure speedier grant of refunds, to the exporters. The salient features of the new scheme, being notified under two notifications, No.17/2009-ST and No.18/2009-ST, both dated 07.07.2009, are as follows:
(a) Under notification No.18/2009-ST dated 07.07.2009, two taxable services, namely, `transport of goods by road’ and `commission paid to foreign agents have been exempted from the levy of service tax, if the exporter is liable to pay service tax on reverse charge basis. The present cap of 10% on commission agency charges has been retained, and the exporter will have to pay service tax on the amount of commission which is in excess of 10%.
(b) Superseding notification No.41/2007-ST dated 06.10.2007, a revised refund scheme is being brought into effect under notification No.17/2009-ST dated 07.07.2009.The salient features of this scheme are:-
• ‘Terminal handling charges’ is being added in the list of eligible services.
• The time period for filing refund claim is being increased to one year from the date of export. The condition for filing refund claims once in a quarter is also being dispensed with. Now the exporter can file a refund claim anytime after export.
• A simplified format is being prescribed for filing refund claims.
• Many of the conditions that were imposed under the previous scheme have been deleted.
• Self certification is being introduced to ensure speedier sanction and disbursement of refunds. In case, where the total refund claim does not exceed 0.25% of the total f.o.b. value of the exports under a claim, a self-certification by the exporter on the invoice, bill or challan, to the effect that: (a) the eligible services have been received by the exporter;
(b) the service tax payable thereon has been reimbursed by the exporter, and
(c) such services have been used for the export, would be sufficient. The refunds shall be granted within one month without any pre-audit.
• In cases, where the amount of refund claim exceeds 0.25% of the f.o.b. value of exports, the invoice, bill or challan submitted by the exporter should be certified by the Chartered Accountant, who audits his annual accounts. On the basis of such certification, the refund claim shall be sanctioned by the department within one month, without any pre-audit.
 
Thus, it is clear from explanatory notes also that the intention of the Government is clear that the refund will be granted on the basis of the certification but the department has not granted the refund on the basis of self certification. On the contrary, he has issued show cause notice and even incorporated various new conditions which were not there in the notification also. Such an approach of the department is totally erroneous and liable to be set aside. Such an approach has deprived the exporter of their legitimate rights.
 
Further, the TRU has also issued letter on this and asked the commissioners to implement this scheme in its spirit. It was told that the scheme is trust based and refund will be granted on self certification. But the department has not followed the same and issued the show cause notices to all the exporters. The extract of the letter of TRU is reproduced below:-
 
8. Changes in the scheme for refund of service tax to the exporters of goods:
 
8.1Notification No. 41/2007-ST dated 06.10.2007 provides for a scheme of refund of service tax paid on taxable services, received and used in connection with export of goods by the merchant/manufacturer-exporter. This notification has been amended several times in order to include a number of taxable services within the scheme and also to facilitate speedier disposal of the refund claims. The Board has also issued a number of circulars. Despite these efforts, representations have been received from trade and industry that there are inordinate delays in grant of refund claims and in many cases the refund is denied or notices are issued to the exporters. On the other hand, the field formations have expressed difficulties in implementing the conditions and following the procedures laid down in the said notification and the circulars issued from time to time. In order to ensure that exporters get refunds speedily, the entire scheme has been revamped. The new scheme would consist of two parts.
 
8.2Exemption to taxable services
The following two services have been exempted, if they are used for export of goods and where the liability to pay the tax on such services is on the exporter himself, on reverse charge basis, -
(i) Transport of goods by road, from the place of removal to any ICD, CFS, port or airport; or from any CFS or ICD to the port or airport; and
(ii) Services provided by a foreign commission agent for procuring orders. This has been done in order to avoid the circuitous route of first paying the tax and then receiving the refund. An exporter registered with an export promotion council, sponsored by Ministry of Commerce or Ministry of Textiles, having Import-Export Code Number and registered with the Department under section 69 of the Finance Act, 1994 for his liability under reverse charge is eligible to claim this exemption. (Notification No. 18/2009-ST dated 07.07.2009 refers).
 
8.3Modified Refund Scheme
Notification No. 41/2007-ST is being superseded by Notification No. 7/2009-ST dated 07.07.2009 prescribing refund scheme in respect of 16 taxable services. Service of ‘terminal handling’ has been added in the existing list of taxable services. The service ‘transport of goods through road’ is also included in this list to cover such exporters who are not liable to pay service tax under reverse charge mechanism. The services of foreign commission agents have been deleted from the list, as it is comprehensively covered under Notification No. 18/2009-ST dated 07.07.2009. While the general structure of the notification is similar to that of 6. Notification No. 41/2007-ST, the new scheme is essentially trust based i.e. refund is to be granted on self-certification/certification by Chartered Accountant.
 
8.4A note is being annexed to this letter giving details of the scheme. All officers dealing with the scheme should be advised read it carefully. The jurisdictional Chief Commissioners and Commissioners are requested to ensure that the scheme is followed in its letter and spirit and the prescribed time period is strictly adhered to. In case of any difficulty or doubt in implementing the scheme, the same may kindly be brought to the notice of the undersigned or of the officers mentioned below immediately. It must be kept in mind that smooth implementation of this scheme is high on the priority of the CBEC.
 
Thus, it clarifies the intentions of the Government to give the refund on self certification basis. But the department does not want to implement the same and issued show cause notice to all the exporters. They have also issued the various show cause notices. Almost more than 100 claims of the exporters have been rejected. Even the refund allowed to exporter under notification 41/2007 has been rejected in this new scheme. Thus, it shows that the order-in-original is going totally contrary to the refund claims and such an approach is totally erroneous. The benefit should be extended to exporters and refund claim should be allowed by allowing the appeal.
 
But the learned adjudication officer has brushed aside the submission of the appellant saying that the notification is clear and we cannot go to the intentions of the Government. But the appellant submit that the intention of law makers is most important and justice requires that the same should be implemented. It has been held in the case of BALWANT SINGH Versus JAGDISH SINGH [2010 (262) E.L.T. 50 (S.C.)]that while interpreting any provision, intention of law makers is to be kept in mind. The verdicts of the hon’ble Apex Court are produced as follows:-
Interpretation of statutes - Legislative intention - Provisions of statute including every word to be given full effect keeping legislative intent in mind to ensure achieving projected object - No provision treatable as enacted purposelessly - Court not to give interpretation to provisions to render them ineffective or odious. [para 14]
The analysis of this decision makes it clear that the intention of the law makers is to be kept in mind while interpreting any provision. When notification no. 17/2009 was implemented, the law makers intended to extend maximum benefit to the exporters. This is also clarified by the Finance minister’s speech, TRU letter etc. But this intention is not followed by the department and almost all the refund claims are being rejected on one ground or another. Such an action is not justified in the light of the decision cited hereinabove. As such, the impugned order should be set aside and the refund should be allowed. 
 
Reasoning of the Commissioner (Appeals):- The learned authority discussed each point separately. The above mentioned contentions of the appellant were found to be reasonable and accepted on the same grounds as presented by the appellant. Hence the Learned Commissioner allowed the refund in respect of following points:
 
 
Ø  ORIGINAL INVOICES OF THE SERVICE PROVIDERS WERE NOT SUBMITTED
 
Ø  SERVICE TAX PAID ON FUMIGATION CHARGES
 
Ø  REFUND CLAIM UNDER PORT SERVICES
 
Ø  CHA SEVICES
 
Ø  EDUCATION CESS
 
 
Decision:- The Appeal is allowed.
 
Conclusion:- On analyzing the above case, it is found that the assessee is required to fight a long battle for able to avail the benefits enshrined in the provisions of law as it is a practice of the department to interpret the exemption notifications strictly. But, sometimes interpreting notification beneficial to the assessee strictly defeats the very purpose of it to allow relief to the assessee and results in overburdening the assessee with the legal and advisory costs. As it is observed that still, refund claim in the present case has not been allowed completely even when the service tax has been paid by the assessee.

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