2023 (1) TMI 601

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.... 2. The present appeal by the Assessee is directed against the order dated 20th July, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata (CESTAT) allowing the Department's Excise Appeal No.471 of 2012 and thereby setting aside an order in the appeal dated 23rd April, 2012 passed by the Commissioner (Appeals) in favour of the Assessee. 3. While admitting the present appeal by the order dated 10^th February, 2020, the following questions were framed for consideration by the Court: "(I) Whether the learned Tribunal was justified in taking a contrary view denying the rightful claim of refund of service tax being the Petitioner is an exporter coming under the Customs Act on the ground....

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....t which had entered agreements with the foreign buyers and it is pursuant to those agreements that the exports took place. Each of the contracts was specifically mentioned in the shipping bills, under which the exports were made. There was separate agreement between the Appellant and M/s. Liberty and M/s. RIPL, under which the latter had a limited role "in just filing the shipping bills". 6. The Commissioner (Appeals) further noted in para 7 and 8 of the order dated 23rd April, 2012 as under: "7. It is also seen the appellant had employed the clearing house agent to export the goods. Further, stevedores had also been engaged by the appellant and so also at the behest of the appellant, service providers of intraport transportatio....

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....July, 2017 while setting aside the order of the Commissioner (Appeals), the CESTAT held that under Section 2(19) of the Customs Act, 1962 (Act) and the term 'exporter' under Section 2(20) of the Act, it was M/s. Liberty and M/s. RITL whose names were mentioned in the shipping bills, who could be considered to be the exporters and not the Assessee. 9. The expressions 'entry', "export goods" and 'exporter' as defined in Sections 2(16), 2(19) and 2(20) of the Act read as under: "2(16) "entry", in relation to goods means an entry made in a bill of entry, shipping bill or bill of export and includes in the case of goods imported or to be exported by post, the entry referred to in section 82 or the entry made under the regulations mad....