TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 921
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....on to export of Iron Ore in terms of Notification No. 41/2012-ST dated 29.06.2012. The Refund Sanctioning Authority, vide various orders, rejected the claims of rebate/refunds except in ore case and on appeal by the appellant, the Commissioner upheld the order of the Adjudicating Authority rejecting the claims and in some instance upheld the decision of demand in respect of erroneously refunded amount, wherein, the issues involved were identical. The appellants have come before this Tribunal in respect of such orders under different appeals. For ease of reference all these appeals with relevant details are summarised in the table below: Sl No Appeal No. Period Refund amount involved (INR) OIO No. OIA No. Remarks REFUND SANCTIONED INITIALLY BUT SUBSEQUENTLY DEMANDED BACK AS ERRONEOUS REFUND UNDER SECTION 73 OF THE FINANCE ACT, 1994 WITHOUT FILING APPEAL AGAINST ORDER SANCTIONING THE REFUND . THE PRESENT PROCEEDING IS CULMINATING FROM SCN ISSUED FOR RECOVERY OF REFUND. 1. ST/30526/2018 July 2012 to September 2013 23,35,09,950 05/2016-17 (R) dated 27.05.2016 VIZ-EXCUS001-APP-197198-17-18 dated 25.01.20....
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....01 SUB-TOTAL [4+5+6+7+8+9] 51,76,07,627 GRAND TOTAL 94,13,92,557 2. The relevant facts common to all these appeals are that during the relevant period under Exim Policy, iron ore of more than 64% Fe content were required to be exported only through MMTC Ltd, which was also a Public Sector undertaking. Therefore, the appellant entered into a Tri-partite Memorandum of Understanding (MoU) with MMTC and foreign buyers in respect of export of iron ore of more than 64% Fe Content (MoU) and also entered into a separate contract with MMTC vide sale purchase agreement dated 20.05.2007. The practise being followed was by the appellant was that they transported iron ore from their mines to Visakhapatnam Port for which they were paying freight charges to Railways and they were both consignee and consignor for the said consignment. Upon reaching at Vizag Port, the appellant further incurred certain additional expenditure on railway freight, Haulage & Tipping Charges, Terminal Charges, Sampling & Draft Survey charges, etc., for transportation of iron ore to the d....
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....cular No. 120/1995-Cus dated 23.11.1995 which clarified that there could be one or more exporters relying on the judgement in the case of Re: Ikea Trading India Limited [2003 (157) ELT 359 (GOI)], wherein, it was observed that exporter under Section 2(20) of Customs Act include their plural and at a time there can be more than one exporter for goods. He also submits that an exporter or manufacturer/exporter have the option to claim rebate. Therefore, both, the appellant being manufacturer exporter and MMTC being merchant exporter are eligible to claim rebate of service tax paid for export of goods. He is also relying on the judgement of Co-ordinate Bench in the case of SK Sarawagi & Company Pvt Ltd Vs CCE [2020 (35) GSTL 208 (T)]. Reliance is also placed on CCE & ST, Tirupati vs Sudalagunta Sugars Ltd., [2014 (34) STR 114 (Tri-Bang)]. His alternative argument is that the exports have been made by the Appellant through MMTC and not by MMTC relying on para 2.01 and 2.02 of Foreign Trade Policy 2015 - 2.20(a),(b) and (c), Para 2.21, Para 2.22 and 2.42 etc. He is also contesting that department has not correctly understood the meaning of paragraph of the said notification, where there ....
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....appellant that their name was mentioned as manufacturer / third party exporter in the shipping bill and relies on the copy of the shipping bill annexed with Appeal No. ST/30323/2016 and Appeal No. ST/30324/2016. He further submits that since they had taken service tax registration in terms of para iii(D) of Notification No. 41/2012-ST, which was required to be taken only by those who were not having central excise registration as manufacture, therefore even assuming that they were mentioned as third party exporter, the appellant did not acquire the status of an exporter of goods for the purpose of getting refund of service tax under the Notification No. 41/2012-ST. 7. Further, on the grounds that the appellant had inseperable link with the exported goods, his submission is that the set link was severed the moment iron ores were sold and delivered to MMTC in Visakhapatnam Port. The placing of reliance on Article 7 of sale purchase agreement are merely terms and conditions agreed by the appellant and MMTC in the context of sale and purchase of iron ore and merely because of these contractual arrangements, the appellants cannot acquire the status of an exporter. He is also highligh....
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.... and manner specified herein below, namely:-. (emphasis supplied) ............. ............. ............. (2) the rebate shall be claimed in the following manner, namely:- (a) manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder shall register his central excise registration number and bank account number with the customs; (b) exporter who is not so registered under the provisions referred to in clause (a), shall register his service tax code number and bank account number with the customs; (c) service tax code number referred to in clause (b), shall be obtained by filing a declaration in Form A-2 to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, of such exporter; (d) the exporter shall make a declaration in the electronic shipping bill or bill of export, as the case may be, while presenting the same to the proper officer of customs, to the effect that-- (i) the rebate of se....
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....name is not appearing as exporter on the shipping bill as exporter. This has been admitted by the appellant also except that they said that their names are appearing as a third party exporter on some of the Shipping Bills. The Adjudicating Authority has also noted that the NMDC were not eligible to export iron ore of Fe content more than 64% and above as per the Extent Policy and it was required to be exported through STE only, which in this case happened to be MMTC. He also considered agreement between NMDC and MMTC which was in the nature of sale and purchase agreement on back to back basis. It was also noted that the shipping bills were filed by the MMTC under the category of their import-export code no. 059100946 and all the documents relating to exports such as export invoice, bill of lading etc., were also in the name of MMTC. Further, the export proceeds were realised by MMTC from the foreign buyers. He has also relied on some of the judgments passed by Co-ordinate Bench of CESTAT, as also by Income Tax Appellate Tribunal, from which it could be inferred that the iron ore exported by the NMDC were actually purchased by MMTC first and sold by NMDC. Reliance was placed on the ....
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....even owner of the goods post filing of Shipping Bill and therefore by virtue of inclusive definition also they could not be put in the place of exporter qua the said consignment. He has especially highlighted Article X of Sale Purchase Agreement to highlight that the risk of loss, damage or destruction in respect of Ore delivered has passed to the MMTC at the time of discharge of ore from loading devices into the vessels, from which it was obvious that the ownership of the goods had shifted to the MMTC in the customs area itself before sailing out of India and this is the fact which clearly contradicts the appellant claims that the title of exported goods remained with NMDC until sale proceeds were received by the buyers. 12. We also note that some of the admitted facts in this bunch of appeals are that there was a restriction on export of iron ore above 64% Fe content in terms of extent EXIM Policy of 2015-20. On perusal of the Policy at Serial No. 73, it is noted that iron ore, other than that is specified under free category, were having certain restrictions in terms that the said export has to be through STE/MMTC. We have perused the Memorandum of Understanding (MoU) and Sal....
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.... any mode, i.e by fax, mail, courier etc. 6. All terms and conditions as stipulated in buyers corresponding sale contract dated 31st May 2006 with Japanese Steel Mills apply to the contract unless otherwise agreed upon. 7. All claims and problems arising from non-fulfilment of quantity / quality etc. of cargo will be settled between the Buyer M/s MMTC Limited and Foreign Buyers (JSM) in consultation with NMDC. 8. MMTC would nominate vessel in consultation with NMDC as per the quantity allocated by NMDC on quarterly basis. 9. NMDC shall appoint Assayer for sampling analysis and draft survey at load port. 10. MMTC shall co-ordinate with port authorities at Vizag and Chennai for berthing vessel in time to avoid / reduce demurrage. A plain reading of these conditions would indicate that there was a designated place, where NMDC were to converge its cargo. This place was belonging to the MMTC, however, the buyers were authorised to operate and converge their cargo in these plots. It also provided that NMDC would pay the port charges relating to exports of cargo of NMDC origin directly to the port in the designated buyer (MMTC) deposit accou....
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....nt that there was a restriction on export of iron ore of 64% Fe content and above and therefore NMDC could not have exported this category of iron ore on their own. The MMTC were only eligible to export this variety of iron ore, but they did not have this type of iron ore available as they did not have Iron Ore Mine. Therefore, they entered into a Sale and Purchase Agreement with NMDC to get this variety of iron ore in India and in terms of various conditions of the agreement, it was required to be delivered at the designated area in the port by the NMDC. Some of the activities were also undertaken by NMDC on behalf of the MMTC at the Port like payment of certain charges, taxes etc., however, all of these were paid on behalf of the MMTC and not on their own account. It is also an admitted fact that for any export, a general condition is that the sale proceeds has to be realised by the exporter in convertible foreign exchange, unless otherwise permitted by the Reserve Bank of India. In this case, the foreign exchange has been realised by the MMTC and not by NMDC and MMTC have converted the said amount into Indian Rupees and after taking their agreed commission, sent the remaining am....
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.... indicate that in relation to restricted category of goods, where the STE has been given a special privilege for import and export, they have been given certain guidelines to make any purchase or sale involving imports and exports solely in accordance with commercial constructions including price, quality, availability, marketability etc. In the present appeal, there is no dispute that MMTC is STE, who has authorised to export said ore and therefore they could not have made NMDC as exporter and therefore they had back-to-back sale and purchase agreement for purchase of certain quantity of ore for which they may also have a general Tri-partite MoU including foreign buyer. Therefore, the MoU with foreign buyer is only for the comfort of the foreign buyer about the availability of source of ore of requisite quality and quantity the said MoU, per se, cannot be interpreted in a manner where it will be deemed to be that both NMDC and MMTC are to be treated as exporter qua the foreign buyers. We have also perused the definition of third party at para 2.42 of the FTP, wherein, it has been provided that the export documents such as shipping bills shall indicate name of both manufacturing ex....
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....rused the same. In the case of Associated Cement Company Ltd., Vs CC [2001 (128) ELT 21 SC], which has been relied upon to support that there can be more than one exporter in terms of definition of exporter. Apart from the facts, issue is not similar to the issue in hand, even in that matter the Hon'ble Supreme Court held certain person as importer, who were made liable for non-levy or short-levy of customs duty. Para 63 is reproduced for ease of reference: 63. It cannot be denied that the imports were made by the appellants. The courier or any other passenger may be the mode or the manner of physical importation of the goods, just as the said goods may have been imported by post. Section 28 of the Customs Act, however, enables the Government to issue notice to the persons importing the articles into India. It is by reason of the collaborators agreements that the drawings, manuals, technical material, etc., were sent by the foreign collaborators to the appellants and it is the appellants who were the importers who alone could be made liable in case of non-levy or short-levy of customs duty. The word 'importer' in Section 2(26) of the Customs Act includes the owner and as t....
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....what cannot be allowed to be exempted directly can also not be allowed so exempted initially unless there is specific provision under the relevant Act or provisions governing such restrictions. Thus, these case laws also have no relevance and are distinguished. They have also relied on many judgments in support that the taxes cannot be exported. Without going into details of this cases etc., we find that while it is a fact that taxes are not exported and some mechanism exist to reduce the tax or eliminate the taxes in respect of export goods however, this doctrine is always regulated through various measures, schemes, notifications notified by the Ministry of Finance or Ministry of Commerce etc., and there is no such general ground that merely because NMDC has paid certain service tax, it must be refunded back to him irrespective of the fact whether they have exported themselves or not. There is a provision for taking care of such situation in terms of provisions under the Central Excise Act and Rules made thereunder, read with relevant notification and if they were eligible under the same, they would have got the benefit of the same. It is obvious that for the purpose of service t....