AI Drafter 
TaxTMI 
TaxTMI 
2015 (9) TMI 688
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....en charged in the invoices by the provider, as per the Finance Act, 1994. The second issue is that, when the services are provided within and outside India and the recipient has paid the Service Tax, whether the appellant is entitled to refund on the part of services provided outside India by the service provider. 3. The brief facts are that the appellant entered into the contract of service with provider of service - Maersk Line for export of the goods, which comprised services at Port of Load, place of receipt, port of discharge, place of delivery etc. The port of loading is located in India and port of discharge and place of delivery is located outside India. In the terms of sale of the appellant, as their buyers are located in foreign land, the ownership of the goods remained with the appellant till place of delivery and any loss or damage occurred on or before delivery of goods is to be borne by them (appellant). In the export invoice, service charges i.e freight documentation, handling charges, inland haulage charges are forming part of cost borne by them. For all these services, the service provider M/s Maersk Line has raised the invoices charging the Service Tax on total....
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....the ambit of Major Port Trusts Act, 1963, are all major ports like Mumbai, Kochi, Kandla, Chennai etc. located in India. Similarly Indian Ports Act, 1908 includes within its ambit minor ports located in India, as well. No port of any foreign country is governed by Major Port Trusts Act, 1963 or Indian Ports Act, 1908 and hence, activities performed in foreign port will not attract Service Tax under port service. The above statement gets support from Rule 3(ii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 which clearly mandates that service defined in Section 65 (105)(zn) and 65 (105)(zzl) will be taxable only when it is performed in India in full or in part. Since the services performed in ports in foreign counties are fully performed outside India, these are not liable to Service Tax and therefore, question of refund of Service Tax paid with reference to such foreign port services does not arise either under Sr. No. 2 or Sr. No. 5 or Sr. No. 16 of Notification No. 17/2009-ST dated 07.07.2009. 7.2 The issue in relation to refund of Service Tax in respect of terminal handling charges at destination, inland haulage charges (import) and do....
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....otification No. 17/2009 provides for refund of Service Tax paid on services availed in the course of export transaction on the ground that whatever tax the appellant have paid on the services provided by the service provider in foreign land or destination being not taxable under the provisions of Finance Act, 1994, hence is not a payment under the provisions of Finance Act, 1994 and as such, no refund can be allowed. 4.2 The learned Counsel urges that the retaining of the amount, though deposit, as duty, but not treated the as duty is also against the policy of the Govt. of India not to export tax and duty. 4.3 The learned Counsel further relies on the ruling in the case of KVR Construction Vs. Commissioner of Central Excise, Bangalore - 2010 (17) STR 6 (Kar) in a Writ Petition where petitioner was held not liable to pay Service Tax vide the order as challenged, in case of civil structure constructed and put to use for education, religious, charitable, health, sanitation and philanthropic purpose, in the light of CBE&C Circular dated 17.9.2004, the amounts paid by the assessee to the Revenue were treated as deposit at the hands of Government and it was held that provisions of....
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....There is no dispute with regard to the aforesaid aspects. The application of the petitioner came to be rejected on the ground that the claim for refund was received in the Customs House on 16-9-1974 while the duty was paid on 19-1-1974. In view of this, it was considered that the claim was made after the expiry of the time limit of six months prescribed in Section 27(4) of the Customs Act, 1962 and, the claim was rejected as being time barred. The Hon'ble High Court on the question that the excess amount of deposited does not form part of the duty but is in the nature of deposit has opined that Section 27 of Customs Act will not apply in the case, as amount detained by the Govt. of India was not an amount paid by way of customs duty in accordance with law. Moreover, presuming that it is duty even then the refund application with within the period stipulated and accordingly directed to make payment of excess paid, with interest. 4.5 The learned Counsel further states that the total service provided by the service provider and received by the appellant have been provided in the course of export transaction. Accordingly, the appellant prays for setting aside the impugned order ....