- (1.) WE have heard Shri A.P. Mathur, learned counsel appearing for the appellant. Shri B.K.S. Raghuvanshi appears for the Central Excise department. This Central Excise Appeal under Section 35G of Central Excise Act, 1944 arises out of an order passed by the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, New Delhi dated 26.3.2013, by which it has upheld the order passed by the Commissioner (Appeals) and rejected the appeal for refund of Rs. 85,291/ -.
(2.) THE respondent filed a refund claim on 6.3.2012 in terms of Notification dated 7.7.2009 for Rs. 4,76,290/ - in respect of the service tax paid on the input services, which were used in the export of goods, exported by them during the period 08.2011 to 10.2011. After processing the refund claim the Original Authority sanctioned the refund of service tax of Rs. 4,76,290/ - against the service tax paid by the respondent for the services used in the export of goods. Aggrieved the department filed an appeal before the Commissioner (Appeals), which was allowed to the extent that the refund claim amounting to Rs. 85,291/ - was recoverable from them under the provision of law. The findings recorded by the Commissioner (Appeals) in paras 6.2 and 6.3 are quoted as below: - - 6.2 Further, I find that the appellant department has contested the sanction of refund of service tax amounting to Rs. 30,386.00 on a very similar ground. The respondent had claimed the refund of service tax amounting to Rs. 54,905.00 on the strength of the Invoice No. RS/GDN/ST/1784/11 -12 dated 17.09.2011 (pertaining to warehousing of goods during the period of 16.09.2011 to 15.10.2011) issued by M/s. Rishi Shipping, Kutch (Guj.) against services of Storage & Warehousing availed in respect of goods exported vide Shipping Bill No. 5252156 dated 02.09.2011 (Qty of goods involved 330 MT). The LEO was granted by the Customs Officer on said shipping bills on 05.09.2011. Since the goods exported vide the said Shipping were not stored/warehoused in the warehouse during the period of 16.09.2011 to 15.10.2011, as the same were exported well before that period, the issue of availing services of Storage and warehousing as claimed by the respondent is not correct. Thus, the claim of refund of service tax paid on the services of Storage & Warehousing availed against the export of goods, vide Shipping Bill No. 5252156 dated 02.09.2011, is not admissible. The inadmissible refund claim involved against export goods of 330 MT worked out to be Rs. 30,386.00 on proportionate basis. 6.3 The respondent has submitted in cross -objections that there have been clerical mistakes in not putting the relevant cenvatable invoices with Shipping Bills mentioned in the statement enclosed with the refund claim. There is no condition in the Notification No. 17/2009 -ST dated 07.07.2009, that the goods exported should bear a co -relation with the services used as provided by the service providers in respect of the specified services. I find no merit in the submissions of the respondent to the extent that all these were clerical errors. The grounds taken by the appellant department are not based on clerical or typographical errors, but are based on the facts available on record which can not be brushed aside. Facts can not be changed merely by saying that documents could not be co -related during the preparation of statements for filing the refund claim. Further, I find that none of the case laws cited by the respondent support that the refund claim can be sanctioned even if the services were not utilized in respect of the export of goods for which the refund claimed. Therefore, under these circumstances, the cross -objections filed by the respondent is also not maintainable. In appeal the CESTAT by its order dated 26.3.2013 did not find any error or infirmity in the findings of the Commissioner (Appeals). The findings recorded by the CESTAT are quoted as below: - - 5. After hearing both sides I find that in the refund in question the invoice submitted along with the refund claim was RS/GDN/ST/1783/11 -12 dated 17.09.2011 which pertains to period 16.08.2011 to 15.09.2011 whereas Shipping Bill No. 4642020 dated 21.07.2011 submitted by them does not cover period of refund. Similarly Shipping Bill dated 02.09.2011 was submitted for invoice RS/GDN/ST/1784/11 -12 dated 17.09.2011 pertaining to period 16.09.2011 to 15.10.2011. In view of these facts I do not find any infirmity in the findings of Commissioner (Appeals). Accordingly I uphold order in appeal passed by the Commissioner (Appeal) and reject the appeal.
(3.) SHRI A.P. Mathur submits that the matter should be remanded as the correct invoices were filed. It was only a mistake, which needs to be rectified by the Assistant Commissioner, Central Excise.;