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Judgment
All the appeals are being disposed by a common order as the issue involved in all of them is identical.
After hearing both the sides duly represented by Shri O.P. Agarwal, learned Chartered Accountant for the appellant and Shri Sanjay Jain, learned
DR for the respondent, we find that the appellants are exporters of mostly handicrafts and are entitled to the refund of service tax paid on the various
specified input services in terms of Notification No. 17/09-CUS dated 7/7/09. Accordingly, they filed the refund claims in respect of various services
like shipping and forwarding agent services, CHA services, terminal handling services, bill of loading services, documentary charges and transportation
by rail etc. including the technical testing and analysis services and fumigation services.
Without going into the individual reasons for denial of refund claim in each and every case in respect of each and every issue, we find that in some
cases refund stand rejected for non-submission of original invoices raised by the service providers. The appellant’s contention is that such invoices
which are computerised invoices have been down loaded through the internet and have been held to be valid invoices in number of cases. Reference
is made to the Tribunal’s decision in the case of CCE vs. Gokul Refoilds & Solvents Ltd. reported in 2012 (286) E.L.T. 62 (Trib.), which allowed
the refund claim even on the certified photocopies. Similarly, in the case of Creative Architects & Interiors reported in 2012 (26) S.T.R. 477,
precedent decisions were taken note of and it was held that Cenvat credit is not to be denied on the basis of computer generated invoices. Learned
Advocate submits that the said invoices contained all the details like container number or shipping bill number, bill of loading number etc. and fully
establishes the availment of the service used in the export of the goods.
In view of the above, we find that the denial of refund of service tax on the said ground is not in consonance with the precedent decisions referred
(supra) as also in terms of the Board Circular No. 112/6/2009-ST dated 12/03/2009. We accordingly direct the Assistant Commissioner to verify the
appellant’s refund claim afresh.
A part of the claim stand denied on the ground that the various services provided by the persons at the port like bill of loading charges, documentary
charges, REPO charges etc. cannot called to be port services as also on the ground that the service providers are not registered under the port
services category, but are registered under different categories.
We find that Larger Bench of the Tribunal in the case of Western Agencies Pvt. Ltd. vs. CCE reported in 2011 (22) S.T.R. 305 (Tri. - LB), has held
that any services provided on the port are “port servicesâ€. Further in the case of Aarvee Denims & Exports Ltd. vs. CCE reported in 2010 (17)
S.T.R. 262 (Trib.) as also in the case of CCE vs. Dishman Pharmaceuticals & Chemicals Ltd. reported in 2010 - TIOL - 1639 - CESTAT it has been
held that refund cannot be denied on the ground that service providers are not registered for any particular services. We also take note of the
Tribunal’s decision in the case of CCE vs. Ramdev Food Products Pvt. Ltd. reported in 2010 (19) S.T.R. 833 (Trib.) laying down that refund of
service tax paid on THC charges, REPO charges, BL charges, DDC charges and haulage charges are admissible in as much as the same are port
services.
In view of the above, we direct the Assistant Commissioner to examine the appellants refund claim and verify the same from the documents and
decide the refund claim accordingly.
The refund claim of service tax paid on CHA services/clearing and forwarding agent services stands denied on the ground that the invoices issued
by the said persons do not mention the goods. The appellant’s contention is that admittedly the said invoices have cross reference to either invoice
number or the shipping bill number and/or container number. From the said cross references the description of the goods can be found out and the
denial of the claim on the said ground is not justified when admittedly the services have been used for the export of the goods.
The said portion of the impugned order is also set aside with directions to the Adjudicating Authority to undertake the necessary exercises for cross
reference of the invoices with the description of the goods.
Further a part of the refund has been denied on the ground that CHA has charged other charges which do not fall under the CHA services and as
such the service tax paid by the CHA cannot be allowed as refund. We are of the view that in as much as and as long as the CHA paid the service
tax on the entire consideration under the category of CHA services, the service recipient would be entitled to the benefit of the same. No such
objection was raised by the Revenue at the time of collection of service tax from the CHA and allowing them to raise such an objection at the time of
grant of refund would be against the principles of justice.
In some cases, we note that the refund claim was filed by describing the transportation of the goods by road, whereas the actual transportation was
rail; the claim was filed under the category of THC instead of CHA. These are the inadvertent mistakes having occurred in the hands of the person
preparing the refund claim. Similarly claiming the service tax under a different service category by referring to a wrong sub-Section should not result
in denial of the refund, if otherwise due to the appellant on merits.
For all the reasons, we set aside the impugned orders and remand the matter to Assistant Commissioner for examining the appellant’s refund
claim afresh, in the light of the law declared by the Tribunal in various decisions as also after verification of the documents, without raising technical
and procedural issues. All the appeals are thus allowed by way of remand.
(Dictated and pronounced in open court.)