MADURA GARMENTS EXPORTS LTD. Vs. COMMR. OF C. EX. & S.T., LTU
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Madura Garments Exports Ltd.
Commr. of C. Ex. And S.T., LTU
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(1.)THE appeal is directed against Order -in -Appeal No. YDB/46 & 47/LTU/MUM/2012, dated 19 -4 -2012 passed by the Commissioner of Central Excise & Service Tax (Appeals), LTU, Mumbai wherein the Commissioner has set aside the impugned orders and allowed the appeals of the department. The facts of the case are that the appellant filed refund applications for refund of service tax of Rs. 5,10,300/ -. However, subsequently, it was made restricted to Rs. 2,91,505/ - as per the worksheet submitted by the appellant. Another claim of Rs. 4,90,294/ -. Both the refund claims were processed by the adjudicating authority and disposed of as detailed below:
Against the sanction of the refund, Revenue filed appeals before the Commissioner (Appeals) who allowed the appeals of the Revenue. However, the appellant did not file any appeal against the refund amount rejected. Aggrieved by the order of the Commissioner (Appeals), the appellant is before me.
(2.)SHRI Vinay Jain, learned Chartered Accountant appearing for the appellant and submits that the original adjudicating authority considered all the documents submitted before him and passed a very reasoned order and part of the refund was sanctioned and part was rejected. He submits that the learned Commissioner (Appeals) has allowed the Revenue's appeal on the ground that the appellant has not fulfilled all the conditions stipulated in the Notification No. , dated 6 -10 -2007 and Notification No. , dated 7 -7 -2009. It is his submission that the appellant has submitted all the documents required for sanctioning of refund claim and wherever there was any deficiency the adjudicating authority has rejected the claim. He submits that the learned adjudicating authority in his finding very elaborately discussed and given a finding explaining each and every service. Countering the findings of the learned Commissioner (Appeals) he submits that as regard non -submission of written agreement between the appellant and buyer of the goods in respect of technical testing and analysis services, written agreement is not mandatory in terms of para 2(f)(iii) of Notification 41/2007 -S.T. according to which the said agreement shall be required to be submitted along with the claim wherever applicable. In the present case, there is no such agreement entered into between the appellant -exporter and the foreign buyer. Therefore, for want of such agreement refund cannot be denied. The Commissioner (Appeals) observed that the appellant did not furnish shipping bill for refund claim in respect of Customs House Agent and Clearing and Forwarding Service. In this context, the learned Chartered Accountant submits that some of the bills of CHA and clearing and forwarding do not contain the reference of shipping bill. However, reference to other documents like airway bill, bill of lading, export invoice are mentioned and on the basis of these references the learned adjudicating authority has observed that the correlation is established and sanctioned the refund claim. Regarding the observation of the learned Commissioner (Appeals) for denial of refund of service tax in respect of courier service, he submits that there is no specific allegation as to how the conditions for refund of courier service was not fulfilled. He draws attention of this Bench to the finding of the learned adjudicating authority wherein the authority has recorded that the particulars of the invoice of the service provider indicates the airway bill number, name and address of the recipient, destination of courier delivery and the amount charged per service. This shows that co -relation between the export and the service is established. He submits from the order of the adjudicating authority that substantial amount of refund has been rejected and only a part amount of refund has been sanctioned. For doing so, the adjudicating authority has carefully scrutinized each refund claim and wherever it was found that even though some minor deficiency with regard to conditions stipulated in the Notification is there but on the basis of other corroborative documents correlation could be established, he sanctioned the refund. Wherever there was no proper correlation the adjudicating authority had rejected the claim. This nature of order of the learned adjudicating authority clearly shows that the learned adjudicating authority has carefully applied his mind and given a very reasoned finding for disposal of the refund claims. On the contrary, the learned Commissioner (Appeals), in his order has given a very vague finding without appreciating the adjudicating authority's examination of the claim.
(3.)ON the other hand, Shri B. Kumar Iyer, learned Superintendent (AR), appearing for the Revenue reiterates the findings of the learned Commissioner (Appeals) order.
I have carefully considered the submissions made by both the sides. On a perusal of the findings of the adjudicating authority, I find that the adjudicating authority has scrutinised both the refund claims very carefully and given elaborate finding on each and every export services independently. It is found that there are some deficiencies as regard to fulfilling the conditions stipulated in the Notification against each service. However, the learned adjudicating authority wherever found that the correlation between the services and the export is not established, he has rejected the refund claim but for sanction of the part refund he has verified other corroborative documents and wherever he could establish correlation with the help of other corroborative documents, then only he sanctioned the refund claim, I agree with the manner the adjudicating authority has processed refund claim and disposal thereof.
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