TaxTMI 
TaxTMI 
2022 (4) TMI 734
X X X X Extracts X X X X
X X X X Extracts X X X X
....7.12.2013, whereby the entire claim was rejected as inadmissible. The Ld. Commissioner (Appeals) upheld the order-in-original and rejected the appeal before him. Hence the present appeal before the Tribunal. 2. The major discrepancy as raised in the show-cause notice is that the submitted copies of Shipping Bill and the Bill of Lading are in the name of M/s MMTC Ltd., Visakhapatnm-530035, which indicates that the exporter is not M/s S.K.Sarawagi & Co.Pvt.Ltd., I, Sarojini Naidu Sarani, "Shubham", 5th Floor, Kolkata-700017. Further, BRC is also in the name of M/s MMTC Ltd. Therefore, it cannot be established that the claimant is the "Exporter". That the two numbers of export invoices against single shipping bill has been submitted by the claimant, but the invoice details as given in the shipping bill do not match. Since, M/s S.K.Sarawagi & Co.Pvt. Ltd. is not the exporter in the instant case, it violates the provision of Para (1) of the said Notification No.41/2012-ST dated 29.06.2012. 3. In view of the above discrepancies, the refund claim was found to be erroneous and in contravention to the provisions of Notification No.41/2012-ST dated 29.06.2012. 4. The Ld. Consultant ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ods to be claimed as Refund. I also find that the Role of M/s MMTC Ltd. as intermediary is only because of the restriction imposed in the Foreign Trade Policy schedule-II, SL. 80 which states that the Manganese Ore to be exported through MMTC Ltd. The restriction imposed in respect of Manganese ore is governed by the Section 3 of the Import and Export (Control) Act, 1947. 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 reference 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 policies. If the Government decides an economic policy that import or export should be by a selected channel or through 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." 8. I find that the Ld.Commissioner (Appeals) discussed the issue in detail in the impugned ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sued subsequently. It was stated by them that the commercial invoice is linked to various variables like content of moisture, size, quality which can only be ascertained when the goods are loaded on the vessel and final inspection is carried out by the authorized agencies as per contractual terms and conditions. From the contention of the appellant, I find that the invoice was issued on 16.08.2012 for 18000 MT and commercial invoice was issued on a later date after ascertainment of quality of the goods in terms of condition of contract for sale." On going through the above discussions, it is apparent that the Appellant submitted invoices on which certification has been done in terms of para 3(k) of the said notification regarding co-relation and nexus between input services and exports made for the said period of claim for refund as well as payment of Service Tax made by them. That all the exports as mentioned above are Third party Exports have been made through Visakhapatnam Port through MMTC Limited as per the export policy of canalized items. That the Foreign Trade Policy Schedule-II Sl. No. 80 does not allow Manganese ore to be directly exported. The relevant portion o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....but the assurance in the quality still rests with the said claimant. That it is further worth mentioning that in the contract on the question of quality & quantity as well as performance of the contract is to be account of the said claimant M/s MMTC shall not be responsible for any claim/damages of buyer or Vessel owner including nonperformance of the Appellant. That it is explicit enough that it is a back-to-back contract & merely for the purpose of the restriction in the export policy, the exports have been made through MMTC but for all practical reasons the Appellant are the exporter. That the Appellant is producing the certificate for the MMTC that they do not have any objection in the event if the said claimant claims the Service Tax. That the money is realized in Foreign Exchange for which proof is there. On back-to-back basis Indian Rupees has been paid to the appellant. The Service in the category of "Port Service", "Technical Testing and Analysis" & C&F Services: The amount claimed in these categories of service is to the tune of Rs. 2,09,671/-. 9. I find from the agreement between M/s MMTC Ltd, and M/s S. K. Resources Ltd dated 03.08.2012 that in article....