TaxTMI 
TaxTMI 
2015 (9) TMI 782
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....s are registered with Service Tax department and in the course of their business, export goods manufactured by M/s. Welspun Gujarat Stahl Rohren Ltd. (sister concern), they have availed credit of input services utilized by it for export of goods. These services inter alia include, port handling charges, commission agent, stevedoring and survey fees, Goods Transport Agency services, etc. As the said services were utilized for the purpose of export, the appellant as exporter being entitled to claim refund under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 41/2007-S.T., applied for refund along with documentary evidences being (a) statement of freight payment, lorry receipt, invoice, ARE-1 & shipping bill, calculation of Service Tax paid thereon, (b) copy of Service Tax payment, (c) Service Tax payment statement for the period December, 2008 to May, 2009, (d) disclaimer certificate issued by manufacturer of goods. (e) non-availment of Cenvat credit declaration issued by M/s. Welspun Gujarat Stahl Rohren Ltd., (f) shipping invoices, freight payment and Service Tax payment thereon, (g) copy of Export Promotion, copy of shipping bill duly passed by Customs, and (h) copy....
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....enied in the refund application. 2.3 Vide Order-in-Original dated 4-2-2010 and 3-2-2010 respectively, the refund was denied by recording the finding of the fact that the assessee has not fulfilled all the conditions inasmuch as the invoice of service provider did not contain the details of the export invoices and the assessee has not produced the invoice of transporter on which Service Tax has been charged. The assessee appellants have not produced the documentary evidence for demand of Service Tax. They have also not provided the export invoices, which is mentioned in the shipping bill due to which it is not possible to ascertain whether invoices issued by the exporter in relation to export of goods indicates the name of the Inland container depot or port or airport from where the goods are exported. It was further stated that the appellants have admitted in their written submission that M/s. Welspun Gujarat Stahl Rohren Ltd. have paid the Service Tax on behalf of the assessee on certain occasions and thereafter given the disclaimer certificate to the assessee-appellant stating that the appellants are free to take refund of the same. Such declaration in favour of the appella....
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....nd utilization of export service is established beyond doubt. Thus, the rejection of the claim on the basis of some information not available in some documents, is not tenable and also not a requirement of Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 41/2007. Notification No. 41/2007 provides for exemption of taxable service in public interest of such services received by an exporter and used for export of goods. Thus, unless the person is exporter/manufacturer, he cannot claim the benefit under Notification No. 41/07. Clause 1(a) provides that exemption shall be claimed by the exporter of the goods for the specified services and used by the exporter for export of the same goods. Clause 1(c) states that the exporter claiming the exemption has actually paid the Service Tax on the specified services. Clause 2(a) states :- "the person liable to pay Service Tax under sub-section (1) or sub-section (2) of Section 68 of the said Finance Act shall pay Service Tax as applicable on the specified [services] provided to the exporter and used for export of the said goods, and such person shall not be eligible to claim exemption for the specified services : Provided that wh....
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....uantity exported. Accordingly, with the above observation, the matter was remanded back for reconsideration. It is further stated by the appellant that it is not the appellant's case also that the appellants have not exported the goods and that broad correlation is drawn as by the Tribunal in the case of Jumbo Mining Ltd. (supra), the appellant's case is allowable on merits and in the alternative the matter may be remanded to the adjudicating authority for a fresh decision in the light of the observation made in Jumbo Mining case. 4. The learned Supdt. (AR) relies on the impugned order and further points out that in the impugned order it is mentioned that some documents were not filed and further as regards the Appeal No. ST/515/11 at page 4 of the Order-in-Original, it is observed that the appellant have not fulfilled all the conditions as much as the invoices issued by the service provider do not contain the details of the exporter's, are not in the name of the appellant and/or the invoices are not in the name of any company. 5. Having considered the rival contentions, I find that the evidence of export has not been doubted and what is doubted is that some information....