M/s Visa Resources India Limited Versus Commissioner of CGST & C. Ex., Kolkata North
Service Tax
2018 (12) TMI 861 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 17-8-2018
Appeal No. ST/75418/2018 – FO/76536/2018
Service Tax
Shri P.K. Choudhary, Member (Judicial)
Shri Nand Kishore Kothari, CA for the Appellant (s)
Shri H.S. Abedin, AC(AR) for the Respondent (s)
ORDER
Per Shri P.K. Choudhary
The facts of the case in brief are that the appellant assessee is engaged in the business of trading of minerals, metals and energy products in India as well as export of such goods. For the purpose of export of goods the appellant has availed various taxable services on payment of Service Tax. Claim for rebate of service tax amounting to Rs. 2,48,482/- paid on the specified taxable services during the period from 06.08.2014 to 30.12.2014 was submitted on 05.08.2015 under Notification No.41/2012-ST dated 29.06.2012. Show Cause Notice dated 10.03.2016 was issued alle
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aid claimant' declared that no CENVAT credit of service tax paid on the specified service used for export of 'the said goods' has been taken under the CENVAT Credit Rules, 2004;
III. -that the sale proceeds in respect of the export of 'the said goods' appears to have been realized by or on behalf of 'the said claimant' in India in terms of para 4 of 'the said notification' as evident from Bank Realisation Certificate submitted by the said claimant;
IV. -that 'the said claimant' self declared that they have not taken Electronic Refund from Customs against the Shipping Bills on the specified services used for export of 'the said goods';
V. -that 'the said claimant' submitted the claim papers accompanied by relevant documents and co-relation and nexus between input services and exports made for the said period of claim for refund as well as payment of Service Tax made by them has been established in terms of 'the said notification' read with MoF, DoR (TRU) Circular No.120/01/2010
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fied in paragraph 2 of the said notification. Therefore, claim amount involving Rs. 1,05,059/- (Rupees One Lakh Five Thousand Fifty Nine) only, as detailed in Table-II Sl.No.1,2 &3 (Col.No.8), is not admissible for refund as it does not fulfill the condition in terms of para 1(c ) of the said notification.
VIII. -that regarding eligibility of the input services provided by M/s. Inspectorate Griffith India Pvt. Ltd. involving Rs. 4,648/- (Rupees Four Thousand Six Hundred Forty Eight) only, as detailed in Table-II Sl.No.4,5,6&7 (Col.No.8), the same were rendered for inspecting 'the said goods', i.e. goods exported being excisable goods well within the place of manufacture – as evident from the inspection certificate. As a result, it does not qualify as 'Specified Services' in terms of Para (a), clause (A)(i) of the said notification. Hence, the said amount, i.e. Rs. 4,648/- is not admissible for refund.
IX. -that an input service invoice of M/s. Bajaj Allianze General Insurance Co.
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s (in terms of Notification 41/2012-ST dt. 29.06.2012
Amount involved (Rs.)
Remarks
1.
4181994 Dt.31.07.14
The difference between the amount of claim (as per Para 3) for refund against the shipping bill and the amount of rebate available under the procedure specified in paragraph 2 is less than twenty percent of the rebate available under the procedure specified in paragraph 2 of the notification hence does not confirms to Para 1(c) of the Notification No.41/2012-ST (Supra)
58584
Inadmissible for refund
2.
4322308 dt. 08.08.14
-do-
18935
Inadmissible for refund
3.
4359653 dt. 11.08.14
-do-
27540
Inadmissible for refund
4.
4566202 dt. 23.08.14
The service provided by the input service providers M/s Inspectorate Griffith India Pvt. Ltd. does not fall under 'specified services' as per the Notification No.41/2012-ST(supra) since the service has not been used beyond the place of removal
394
Inadmissible for refund
5.
6788000 dt.22.12.14
The service provided by the i
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ny submits that since the Notification No. 41/2012-ST dated 29.06.2012 is a beneficial legislation, the intent to promote exports by granting exemption of the service tax paid on various services utilized by the exporter during the course of exports of the goods and has to be construed liberally.
4. Ld. D.R. reiterates the orders of the lower authorities.
5. I find that the issue is no more resintegra in view of the various decisions of the Tribunal holding a consistent view. I also find that this Bench in the case of Commissioner of Service Tax-II, Kolkata vs. SSK Exports Ltd. & others in Final Order No.FO/77622-77631/2017 in Appeal Nos. ST/76918, 76926, 76925, 76927, 76922, 76921/16, 76961, 76924, 76919 & 76923/16 wherein under similar circumstances, Revenue has contended that the refund claim for each shipping bill should be examined on individual basis instead of overall basis, has upheld the order of the Ld. Commissioner (Appeals) wherein it was held that there is no requirement
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than twenty per cent of the rebate available under the procedure specified in paragraph 2 in terms of Para 1 (c) of the Notification and accordingly. Accordingly, the refund of service tax of Rs. 1,64,163/- in respect of a few shipping bills under Para 3 is erroneous for the reason indicated above and the same needs to be recovered with interest.
7. The other grounds taken in the appeal are that rebate claim in respect of each shipping bill in an application is a separate claim and the requirement of certificate on the documents enclosed with Form A-1 in terms of clause (h) and clause (i) of Paragraph 3 of the Notification is required to be fulfilled with reference to each shipping bill. It is also contended that in respect of two shipping bills appearing in serial numbers 1 and 2, the rebate claimed against those two shipping bills involving service tax of Rs. 51,167/- is more than 0.50% of the FOB value of the export goods. Therefore, the certificate should have been signed by the
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used for export of goods to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture in Form A-1;
(d) the exporter who is not so registered under the provisions referred to in clause (c), shall before filing a claim for rebate of service tax, file a declaration in Form A-2, seeking allotment of service tax code, to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, of such exporter;
(e) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after due verification, allot a service tax code number to the exporter referred to in clause (d), within seven days from the date of receipt of the said Form A-2;
(f) on obtaining the service tax code, exporter referred to in claus
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l or challan, or any other document for each specified service, in original, issued in the name of the exporter, evidencing payment for the specified service used for export of the said goods and the service tax paid thereon, certified in the manner specified in sub-clauses (A) and (B) :
(A) if the exporter is a proprietorship concern or partnership firm, the documents enclosed with the claim shall be self-certified by the exporter and if the exporter is a limited company, the documents enclosed with the claim shall be certified by the person authorised by the Board of Directors;
(B) the documents enclosed with the claim shall also contain a certificate from the exporter or the person authorised by the Board of Directors, to the effect that specified service to which the document pertains has been received, the service tax payable thereon has been paid and the specified service has been used for export of the said goods under the shipping bill number;
(i) where the total amount o
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of export on the basis of procedure prescribed in paragraph 2; and
(iv) that the rebate claimed is arithmetically accurate,
refund the service tax paid on the specified service within a period of one month from the receipt of said claim :
Provided that where the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, has reason to believe that the claim, or the enclosed documents are not in order or that there is a reason to deny such rebate, he may, after recording the reasons in writing, take action, in accordance with the provisions of the said Act and the rules made thereunder”.
8.1 From the bare reading of the Notification, it is clear that rebate may be claimed on the service tax actually paid on any specified service used for export of goods as per the procedure specified in Paragraph 2 or Paragraph 3 of the said Notification. The plea taken by the Department is that this has to be applied against each individual shippi
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total amount of service tax paid and claimed as rebate have to be furnished. Again, under column “total amount of service tax paid and claimed as rebate” as a percentage of FOB value in shipping bill has to be shown. Therefore, from the Form A-1 and its table it is clear that claim is not shipping bill wise but only details have to be furnished separately for each shipping bill. Nowhere in the Paragraph 3 of the Notification, it is stated that rebate claim has to be filed shipping bill wise. Further, the total amount of service tax paid which is claimed as rebate has to be shown in figure and as a percentage of total FOB value in shipping bill. This also shows that it is not shipping bill specific when more than one shipping bills are involved in a claim. Therefore, there is no requirement to determine FOB value shipping bill wise to determine the formula enumerated in Para 1 (c) or in Para 3 (i) of the notification. Moreover, plain reading of Para 1 in conjunction with Paragraph 3 cl
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