NIRMA LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD

JUDGEMENT

(1.) THE refund claims filed by the appellant under Notification No. 41/07 have been denied to the appellants on the ground that services provided in the port relating to repo charges, documentation charges, etc., are not covered by port services in view of the fact that the service provider was not authorised by the port; as regards transportation of goods by road from the place of removal to ICD/Port or airport, the details of export invoices relating to export goods were not mentioned and there is no indication in the LR that the goods were directly transported from the factory to the port/ICD and in the case of transportation by rail also some conditions have not been fulfilled; some of the refund claims are time -barred since they were filed beyond the period prescribed in the notification and the claim for interest by the appellant because of delay in sanctioning the claim is not admissible since for refunds under service tax provisions of Section 11BB requiring the department to pay interest are not applicable.

(2.) HEARD both the sides. In the case of appeal No. ST/101/10 in which the impugned order is OIA No. 47/10, the learned consultant had shown lorry receipts by the transporter and I find that the lorry receipts issued by the transporter, the invoice number issued by the exporter, the port to which the goods were retrained and the value in US$ has been indicated. It is not known what documents were verified by the original adjudicating authority and the Commissioner (Appeals). On the one hand it is the claim of the appellant that all the lorry receipts contain the relevant details where as the facts as found by the lower authorities are entirely different. It was submitted that even though photocopies were shown and enclosed to the appeal memorandum, original documents have been submitted to the department. I would like the original adjudicating authority to verify once again and see whether relevant details are available in lorry receipt or not. If they are not available the photocopy of the lorry receipt can be taken and made part of the order -in -original so that it becomes clear that the original documents do not have the relevant details relating to export goods. Another ground taken by the lower authorities for rejecting the claim is that the amount of Service tax paid towards GTA services for bringing the empty container to the factory for stuffing is not admissible. I am unable to understand how goods can be stuffed in a container without bringing the empty container from elsewhere. In any case the issue is squarely covered by the decision of this Tribunal vide Final Order No. A/645/WZB/AHD/09, dated 27 -2 -2009 and reported in 2009 (02) LCX 0057. This amount should have been allowed. As regards port services, the refund has been rejected on the ground that the service provider was not authorised.

(3.) THIS cannot be the basis for rejection. What is required for the verification is whether service tax was paid for rendering port services or not. If the service tax was paid for rendering port services, having accepted the amount of service tax paid towards port services and having registered the shipping liner for providing port services, the service cannot be reassessed at the receivers end to deny the refund. Therefore the lower authority is required to verify and record a clear finding that the services provided by the shipping liners were not these services but some other service which is not eligible for refund. Another ground taken for rejecting the refund claim is limitation. In this case the claim has been rejected on the ground that from the relevant date namely date of ARE -1, the refund claim was time -barred. However, I find the notification itself provides clearly that the relevant date for determination of limitation is the date on which proper officer of Customs makes an order permitting clearance and loading of the goods for exportation. Therefore the finding that the claim is time -barred because it is filed beyond the period when counted from the date of ARE -1 is appears to be against the provisions of Notification No. 41/07 -S.T., dated 6 -10 -2007.