2019 (5) TMI 1435

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....t the claimant is the "Exporter'. Since M/s S. K. Sarawagi & Co. Pvt. Ltd. is not the exporter in the instant case, it violates the provision of para 3 (a) of the said Notification No. 52/2011-ST dated 30.12.2011. In view of the above discrepancies and grounds of appeal, the reviewing Commissioner vide his Review Order No. 10/Review/Divisional/ST/Kol/2012-13 dated 18.07.2012 found that the Refund sanctioned by the Order-in-Original dated 27.04.2012 amounting to Rs. 4,59,422/- is erroneous and in contrary to the provisions of the said Notification." The Commissioner (Appeals) allowed the appeal by setting aside the Order-in-Original. Being aggrieved, the assessee is in appeal before the Tribunal. 2. The Ld. Consultant appearing on behalf of the appellant submits that the appellant had a mining lease from the Central Government and the Principal Product to be exported is Manganese Ore. Foreign Trade Policy Schedule-II, SL No. 80, does not allow Manganese Ore to be directly exported by an exporter and can only be exported by MMTC or MOIL as a Policy of the Government. It is his submission that the appellant/assessee has right to claim refund under Notification 52/2011-ST dat....

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....port of goods to be claimed as refund was rightfully sanctioned. I also find that the Role of M/s MMTC Ltd. is only like an intermediary because of the restriction imposed in the Foreign Trade Policy Schedule-II, SL. 80 which states that the Manganese Ore can only be exported through MMTC Ltd. The restriction imposed in respect of Manganese Ore is governed by Section 3 of the Import and Export (Control) Act, 1947. 6. I also find that the Hon'ble Supreme Court in the case of Daruka & Co. Vs. Union of India as reported in 1999 (110) E.L.T. 419 (S. C.) has held in Para-16 as below:- "16. Policies of imports or exports are fashioned not only with relevance to internal or international trade but also on monetary policy, the development of agriculture and industries and even on the political policies of the country but rival theories and views may be held on such polices. If the Government decides an economic policy that import or export should be by a selected channel or thought selected agencies the court would proceed on the assumption that the decision is in the interest of the general public unless the contrary is shown." 7. I find that the Refund Sanctioning Authority has pa....

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....ganese Ore to be directly exported. The relevant portion of the extract of the policy is enumerated below:- SL. No. Tariff Item HS Code Unit Item Description Export Policy Name of Restriction 80 2602 Kg. Manganese Ores Excluding the following: Lumpy/blended Manganese Ore with More than 46 percent manganese manganese STE Export through MMTC ltd. Manganese Ore India Ltd. (MOIL) for manganese ore produced in MOIL Mines. : that a Contract is normally made between the foreign buyer & the said claimant. The buyer is identified by the said claimant. MMTC enters into an agreement with the foreign buyer. : that the said claimant enters into an agreement with MMTC for a back contract. : that the Contract with MMTC is that the title to the goods passed to MMTC on FOB ST basis. : that it is explicit enough that port services have to be performed by different service provider in the name of the said claimant without which it is not possible to transfer the title of goods on FOB ST basis. : that the said claimant is an exporter in terms of the definition of export under Section 2 (20) of the Customs Act, 1962 which is depicted below:- ""2(20)- "Exporter" in relati....

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....Rs. 5,35,095/-. : that the said claimant amended their initial claim for refund of Rs. 5,35,095/- to Rs. 4,59,422/- withdrawing Rs. 75673/- (against invoice no. SS 11001184 dated 23.09.2011 of M/s Visakhapatnam Port Trust amounting to Rs. 2089/-, SS 11001183 dated 23.09.2011 of M/s Visakhapatnam Port Trust amounting to Rs. 373/-, BSS/SKS/1142-12 dated 11.11.2011 of M/s Bothra Shipping Service amount to Rs. 71,415/-, V/2011-12/8-52 dated 25.11.2011 of M/s Mitra S. K. Pvt. Ltd. Amounting to Rs. 194/-, 1939 dated 03.08.2011 of M/s Essen & Co. amounting to Rs. 820 & 1937 dated 01.08.2011 of M/s Essen & Co amounting to Rs. 782/- from the total claim on 05.04.2012, 13.04.2012 & 20.04.2012. : that out of the claimed amount of Rs. 4,59,422/- as refund of Service Tax paid on taxable specified services provided, as detailed at Annexure-2 of the brief facts above, I find that services in respect of the said invoices mentioned at the brief facts above amounting to Rs. 4,59,422/ is the taxable specified services in terms of the said notification which has been rendered for the export of the said goods for the relevant period of claim and therefore, fulfilled the conditions/requirements of t....