POLYPLEX CORPORATION LTD. Vs. COMMISSIONER OF C. EX.
LAWS(CE)-2015-2-51
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on February 05,2015

Polyplex Corporation Ltd. Appellant
VERSUS
COMMISSIONER OF C. EX. Respondents

JUDGEMENT

Ashok Jindal, Member (J) - (1.)THE appellant is in appeal against the impugned order denying the refund of Service Tax used in the export of the goods. The brief facts of the case are that the appellant is manufacturer of their final products, i.e., polyester films exported by them. Certain services were availed by the appellant for exportation of the goods. Therefore, after export of these goods, the appellant filed refund claim of Service Tax paid on the services used for export of their goods. The refund claim was not allowed for the services, namely, Inland Haulage Charges, GTA charges, Ocean Freight charges and On -Carriage Charges, THS (Destination) Charges, Carrier Security Services and Courier Service Charges. Against the order of denial, the appellant is before me.
(2.)LEARNED Counsel for the appellant submits that the appellant has to deliver the goods upto the destination of the buyer of the goods. Therefore, whatever services they availed upto the destination of the buyer of the goods, the appellant is entitled input Service Tax refund. He further submits that the purchase order obtained by the appellant clearly shows that the goods are to be delivered at the destination of the buyer in the foreign country and they have borne all the expenses incurred on the delivery of the goods and the same is forming the part of the selling price of the goods. Therefore, they are entitled to avail input service credit and consequently the appellant are entitled to refund of Service Tax paid on the services.
He further submits that in the case of Inland Haulage Charges, the refund was denied on the ground that the service provider is required to pay only Service Tax on a value equivalent to 30% of the gross amount but the service provider charged the Service Tax on the 100% of value of the amount. Therefore, they are not entitled for refund of the same. In respect of GTA service, the adjudicating authority held that the service provider was to charge concessional value, i.e., 25% of the gross freight but the service provider charged Service Tax on 100% of the value of freight. In pursuance to this, it is submitted by learned Counsel that Notification No. , dated 7 -7 -2009 provided that the exemption claimed by the exporter shall provided way of Service Tax 'paid' 'not payable'. Therefore, in these circumstances, they are entitled to claim refund of 100% Service Tax paid by them. He submits that for Ocean freight, On -Carriage and Terminal Handling service at foreign port, they are entitled to claim refund as the goods were supplied by them at the destination of buyer's of the goods in the foreign country. These charges form part of the value of the goods. For courier service charges, he submits that denial of refund is on the ground that service provider is not a courier agency. To counter this contention, he submits that service provider is M/s. TMT Logistics Pvt. Ltd., who paid courier service charges for sending the material on behalf of the appellant and thereafter raised the bills on the appellant alongwith Service Tax. Therefore, the appellant is entitled to take refund of the same.

(3.)LEARNED AR opposes the contention of the learned Counsel and submits that for Inland Haulage Charges and GTA service, they are not payable by the service provider. Therefore, as per clause (2)(b) of Notification No. , dated 7 -7 -2009, they are not entitled to refund claim of Service Tax 'payable' as not 'paid'. For Ocean Freight and Terminal Handling (destination) charges, he submits that Section 64 of Finance Act, 1994 does not extend territory of foreign country and the Finance Act, 1994 is applicable to whole of India except the State of Jammu & Kashmir. Admittedly these services were availed beyond the territory of India, the appellant is not entitled to claim refund of Service Tax. For courier service charge, he submits that these charges have not been availed by the appellant in fact this service has been availed by the M/s. TMT Logistics Pvt. Ltd. as the invoices are not in the name of the appellant, they are not entitled to refund claim. He further submits that the ownership of the goods was not in the name of the appellant.
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