Pradeep Jain - Chartered Accountant

PJ/CASE LAW/2015-16/3008

Case:BODAL CHEMICALS LTD. versusCOMMISSIONER OF C. EX., AHMEDABAD

Citation:2015 (39) S.T.R. 1038 (Tri. - Ahmd.)

Brief Fact:The refund claim of Service Tax paid on various services namely transport of goods by road, transport of goods by rail, agency charges and port charges and commission charges for export of goods has been rejected. In respect of transport of goods by rail, the claim has been rejected on the ground that no evidence has been produced to show that the service provider has not availed Cenvat credit of Service Tax. It was submitted that the C & F agent has played the role as clearing agent and he had paid for transportation for by rail on behalf of the appellant and copy of the invoice issued by CONCOR is produced.

Reasoning of Judgment:As regards transportation of goods by road, it has been held that appellant has shown only invoice number. However, the attention has been drawn to the covering letter dated 30-3-2009 under which at serial No. 4 of the covering letter invoice along with attested copies of shipping bills and bills of lading and bank realization certificate are said to be attached. However, learned Counsel submitted that they would satisfy the original adjudicating authority by producing the documents and seeks remand on this ground. This plea is accepted.
Further, the refund of Service Tax paid on Port service has been rejected on the ground that service provider was not authorized by the port. In this connection there are several decisions of the Tribunal holding that at the receiver’s end, refund cannot be denied on the ground that service provider was not authorized by the port. The decision in the case of GPL Polyfills - 2009 (14)S.T.R.557 is relevant. In view of the above, denial of refund on this ground is not correct and therefore, impugned order is set aside.
As regards CHA services, the refund has been denied on the ground that services provided by the CHA were not in the nature of CHA service at all. Once again the Revenue is trying to classify the services rendered by the service provider at the receiver’s end. What is required to be examined is whether invoices issued by the CHA shows the Service Tax paid under the Heading CHA service or not. If the service rendered as CHA and tax has been paid under the category, it would not be appropriate to disallow the credit.
The last issue involved is whether refund of Service Tax paid on services of Commission Agents located abroad is available or not. Learned Counsel submits that the service received is for sales promotion of the goods manufacture by the appellant. There are several decisions taking a view that the Service Tax paid on Commission Agent service located abroad for sales promotion is admissible for the purpose of Cenvat credit and thereby refund. Therefore, in respect of these services also refund is to be held as admissible.
Since the original adjudicating authority has not verified the documents and has also taken a view that documents were not submitted, the matter is remanded to original adjudicating authority, who shall decide the issue in terms of the above order and decide the eligibility on the basis of documents produced by the appellant.

Decision: Appeal disposed of

Comment:The gist of the case is that refund claim of Service Tax paid on various services namely transport of goods by road, transport of goods by rail, agency charges and port charges and commission charges for export of goods has been rejected. Since the original adjudicating authority has not verified the documents and has also taken a view that documents were not submitted, the matter is remanded to original adjudicating authority, which will decide the issue in terms of the above order and will decide the eligibility on the basis of documents produced by the appellant.

Prepared By:Anash kachaliya

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PJ/CASE LAW/2015-16/3008

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