Cst, Ahmedabad and Another Vs. M/S Adani Enterprise Ltd - Court Judgment

SooperKanoon Citationsooperkanoon.com/1149818
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Ahmedabad
Decided OnFeb-21-2014
Case NumberAppeal No. ST/731, 743 of 2011- SM Arising Out of:OIA No. 232 of 2900(STC)/K.Anpazakan/Commr(A)/Ahd dated 8.9.2011
JudgeTHE HONOURABLE MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) & THE HONOURABLE MR. H.K. THAKUR, MEMBER (TECHNICAL)
AppellantCst, Ahmedabad and Another
RespondentM/S Adani Enterprise Ltd
Excerpt:
m.v. ravindran, j.        1. these two appeals are filed by the revenue and the assessee against very same impugned order both the appeals raise a common question they are being disposed of by a common order. 2. filtering out unnecessary details, the facts that arise for the consideration are the assessee appellant had claimed refund of the service tax paid by them on various services which were received for export of goods during the period july 2009 to march 2010; refund was claimed in terms of notification dtd 17/2009-st dated 7.7.2009. the adjudicating authority rejected the entire refund claim holding that the appellant assessee is not eligible for such refund. on an appeal filed by the appellant, the first appellate authority had allowed the appeal and held that the appellant assessee is eligible for the refund of service tax paid by them for the export of the consignments made by them except in the case of terminal handling charges for the period prior to 7.7.2009 and also held against the appellant for that part refund claim which was beyond the period one year from the date of export of goods. assessee aggrieved by the appellant of rejection of the appeal by the first appellate authority while preferred before the tribunal and revenue is also in appeal on the ground that first appellate authority erred in allowing part refund. 3. heard both sides at length and perused the records. coming to the appeal filed by the appellant assessee, i find that the issue regarding he refund of service tax paid on terminal handling charges has attained finality in the hands of honble high court in appeal no. 2391 of 2013, following the decision in ce appeal no. 755 of 2012. it is also noticed that the appeal no. 755 of 2012 is decided by the honble high court of gujarat in an appeal filed by the revenue against the order passed by the tribunal where the tribunal in respect of the very same assessee granted refund of service tax on the same services in question. on perusal of the said orders of the honble high court in tax appeal no. 755 of 2012, i find that the issue raised by the appellant in this appeal are covered and hence i find that the appeal no. st/743/11 to the extent of the rejection of refund claim on the terminal handing charges need to be allowed. 4. as regards the appellant assessee appeal which were rejected beyond a period one year; i find that i have taken a view in the case of andhra ferro alloys ltd vs cce, vishakapatanam 2011(23)str.670 (tri.bang.) wherein it has been held that any refund claim filed beyond one year is to be dismissed as time bar. in the case in hand since there is no dispute that refund claims which has been rejected by the lower authorities has beyond limitation of one year as provided in notification the said orders needs to be upheld and i do so. 5. as regards the revenue appeals, i find that judgment of honble high court of gujarat as cited hereinabove squarely covers the issue in favour of the assessee. 6. in my view when there is no dispute as to export of goods and the services were received in relation to such export of goods and there being evidence of is discharge of service tax liability by the service provider procedural aspects cannot be a reason for rejecting of refund claim is the law now settled by various decisions. 7. accordingly, i find there is no merit in the appeals filed by the revenue. 8. assessee appeal and the revenue appeal disposed of as indicated herein above.
Judgment:

M.V. Ravindran, J.        1. These two appeals are filed by the Revenue and the assessee against very same impugned order both the appeals raise a common question they are being disposed of by a common order.

2. Filtering out unnecessary details, the facts that arise for the consideration are the assessee appellant had claimed refund of the Service Tax paid by them on various services which were received for export of goods during the period July 2009 to March 2010; refund was claimed in terms of Notification dtd 17/2009-ST dated 7.7.2009. The Adjudicating Authority rejected the entire refund claim holding that the appellant assessee is not eligible for such refund. On an appeal filed by the appellant, the First Appellate Authority had allowed the appeal and held that the appellant assessee is eligible for the refund of Service Tax paid by them for the export of the consignments made by them except in the case of Terminal Handling charges for the period prior to 7.7.2009 and also held against the appellant for that part refund claim which was beyond the period one year from the date of export of goods. Assessee aggrieved by the appellant of rejection of the appeal by the First Appellate Authority while preferred before the Tribunal and revenue is also in appeal on the ground that First Appellate Authority erred in allowing part refund.

3. Heard both sides at length and perused the records. Coming to the appeal filed by the appellant assessee, I find that the issue regarding he refund of Service Tax paid on Terminal Handling Charges has attained finality in the hands of Honble High Court in appeal No. 2391 of 2013, following the decision in CE appeal No. 755 of 2012. It is also noticed that the appeal No. 755 of 2012 is decided by the Honble High Court of Gujarat in an appeal filed by the Revenue against the Order passed by the Tribunal where the Tribunal in respect of the very same assessee granted refund of Service Tax on the same services in question. On perusal of the said orders of the Honble High Court in Tax appeal No. 755 of 2012, I find that the issue raised by the appellant in this appeal are covered and hence I find that the appeal No. ST/743/11 to the extent of the rejection of refund claim on the terminal handing charges need to be allowed.

4. As regards the appellant assessee appeal which were rejected beyond a period one year; I find that I have taken a view in the case of Andhra Ferro Alloys Ltd vs CCE, Vishakapatanam 2011(23)STR.670 (Tri.Bang.) wherein it has been held that any refund claim filed beyond one year is to be dismissed as time bar. In the case in hand since there is no dispute that refund claims which has been rejected by the lower authorities has beyond limitation of one year as provided in notification the said orders needs to be upheld and I do so.

5. As regards the Revenue appeals, I find that judgment of Honble High court of Gujarat as cited hereinabove squarely covers the issue in favour of the assessee.

6. In my view when there is no dispute as to export of goods and the services were received in relation to such export of goods and there being evidence of is discharge of Service Tax liability by the Service provider procedural aspects cannot be a reason for rejecting of refund claim is the law now settled by various decisions.

7. Accordingly, I find there is no merit in the appeals filed by the Revenue.

8. Assessee appeal and the Revenue appeal disposed of as indicated herein above.