MAS Logistics Versus The Principal Commissioner of CT & C. Ex GST North Commissionerate Chennai
Service Tax
2018 (9) TMI 1519 – CESTAT CHENNAI – 2019 (21) G. S. T. L. 37 (Tri. – Chennai)
CESTAT CHENNAI – AT
Dated:- 25-9-2018
ST/42657/2017 – Final Order No. 42463/2018
Service Tax
Ms. SulekhaBeevi, C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
For the Appellant : Shri V. Ravindran, Advocate
For the Respondent : Shri R. Subramaniyan, AC (AR)
ORDER
PER BENCH
The brief facts of the case are that appellants have registered with the service tax department under the category of Clearing & Forwarding Agent and for GTA services. They rendered LogisticSupport service to the shipper namely M/s.Jinneng Energy Technologies Ltd., China (JETL, for short) and received consideration in convertible foreign exchange. While executing such service, they availed various input services for export of logistics services and hence filed a refund claim on 28.0
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authority who split the said services into two categories. One category relating to import and the other relating to export of service. Thus,the department denied the refund claim stating that the amount claimed as refund is incurred for import of goods. He submitted that the appellant had rendered specific logistics service in connection with the goods returned to the shipper. M/s.JETL (shipper) vide letter dt. 11.5.2016 informed the Commissioner of Customs, Tuticorin that they were in the process of executing purchase order of 21 containers of solar modules from M/s.Solar Edison Products, Singapore to the end consumer Sun Edison Solar Power India Pvt.Ltd., Chennai. The said containers arrived at Tuticorin port on 29.03.2016 but due to unforeseen business circumstances, the importer could not take delivery of the containers and therefore after negotiations, the shipper agreed to recall the goods and carry them back to China. The appellant had entered into agreement dt. 1.1.2015 with H
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ntermediary and has merely rendered the logistics service to the intermediary located outside India.
3. The Ld. A.R Shri R. Subramanian supported the findings in the impugned order. He submitted only when the Proper Officer gives permission to the appellant, the activity of the appellant can be regarded as 'export of services'. Therefore, the input services availed by the appellant prior to grant of such permission by the Customs officers cannot not be treated as input services relating to import of the goods. In the present case, the appellant was an intermediary for export of the goods and are therefore the credit availed on input services is not eligible for refund since the place of provision of service is within India.
4. Heard both sides. The main contention put forward by the department is that the appellant is an intermediary and therefore the place of provision of service is within India.The department has relied on Rule 9 of Place of Provision of Rules 2012, and held that s
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ntract between shipper (M/s. JETL) and the importer was frustrated and the goods were not taken delivery by the importer. Thus ownership still remained with shipper and he recalled the goods. Thus the goods were to be carried back to China. For this re-export/return of goods, various legal formalities and procedures are required to be complied. The goods had to be kept in CFS, under proper storage facility had to be presented for examination/verification of Customs department etc. The inputs services availed for doing such return of goods to China are services availed for exports of goods only.Therefore the rejection of refund alleging that input services having not been availed for export of services cannot sustain and we hold that appellant is eligible for refund of cenvat credit availed on input services used for export of logistic services. The impugned order upholding the rejection of the refund claim is set aside. Appeal is allowed with consequential benefits, if any, as per law.
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