COMMISSIONER OF CENTRAL EXCISE Vs. ORIENT CRAFT LTD.

JUDGEMENT

(1.) M /s. Orient Craft Limited (hereinafter referred to as Appellant) are a manufacturer exporter of readymade garments.

(2.) In connection with export of readymade garments, they have availed several services like the services of Goods Transport Agency, custom house agents services, port and other port services, transportation of goods by rail services etc. The period of dispute in these appeals is from September, 2009 to December, 2009. Exemption Notification No. , dated 7 -7 -2009 exempts from the Service Tax, the services mentioned therein which have been received by an exporter and used for export of goods. This exemption is subject to certain conditions as specified in this notification in respect of different services. In terms of the conditions of the notification, the refund claim is required to be filed to the Assistant Commissioner/Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or registered office or head office, as the case may be, within a period of one year from the date of export. The date of export for the purpose of this notification is the date on which the proper officer of customs makes an order permitting clearance and loading of the goods for export under Section 51 of the Customs Act, 1962, that is, the date of "let export" order.

(3.) SH . A.K. Jain, Consultant, representing the appellant M/s. Orient Craft Limited, in all these appeals, pleaded that so far as the impugned order -in -appeal dated 1 -11 -2011 passed by the CCE (Appeals) is concerned, there is no infirmity in the impugned order, that refund claim for Jan.'09 had been filed within time and just because it was filed in the office, which according to the Department was not the concerned office and on the advice of that office, the claim was submitted in the office of the Jurisdictional Assistant Commissioner/Deputy Commissioner, the claim cannot be rejected as time barred, that co -relation of the services received with goods exported stands clearly established, that in respect of service of Terminal Handling, the Service Tax has been collected as 'Port Service' and in respect of 'Account Management Charges' charged by 'Custom House Agents', the service has been collected by the Jurisdictional Authorities by treating it as service of Custom House Agent and that the Jurisdictional Assistant Commissioner considering the refund of the Service Tax to exporter under Notification No. , cannot seek to review the assessment of Service Tax accepted and finalized by the Jurisdictional Central Excise & Service Tax Authorities at the end of the service providers. As regards the appeal No. ST/810 -811/2012 against order -in -appeal dated 30 -3 -2012, he pleaded that the impugned order upholding the rejection of refund claim is totally wrong, that as regards clearing and forwarding service and CHA service, the export invoice numbers are mentioned in the invoices of the service providers and cross verification could be done from the export invoice number mentioned in the correspondence/export documents/shipping bills and, therefore, it is absolutely incorrect to say that the service provider's invoices cannot be co -related with the shipping bills, that as regards the 'Port Service' the assessee has exported the goods by availing the service and ultimately the shipping companies who are responsible for making payment to port authority, that the appellant have included all the services provided in the port under "Port Service", as the same has been clarified by Board vide Circular No. 104/07/2008 -S.T., dated 16 -8 -2008 which says that the services which are incidental to main service should be classified in the category of the main service, that as regards not mentioning the ICD/port/airport, the appellant in the export invoices have clearly mentioned the name of ICD from which the goods have been exported, that the Commissioner (Appeals) has not considered the submissions of the appellant and has summarily dismissed their appeal and that in view of this, the impugned order is not correct.