Writ Petition Filed to Refund Tax Amount with Minimum Interest Borne by the Petitioner under Mistake of Law

Last updated: 22 May 2021

Save Share

Quick Summary

This case involves a company that paid service tax for storage facilities, later clarified by the Central Board of Excise and Customs not to be a taxable service for 'clearing and forwarding agents'. The petitioner sought a refund of the tax paid, amounting to Rs.1,10,999/-, along with minimal interest. The court considered whether the service provided fell under the definition of clearing and forwarding services.

Court :
Madras High Court

Brief :
This Writ Petition has been filed for a writ of mandamus to direct the respondent to refund the tax amount of Rs.1,10,999/- with minimum interest borne by the petitioner under mistake of law. The petitioner was a recipient of service from M/s.IMC Limited. The said company had charged service tax on the petitioner for utilizing the storage facility. The Central Board of Excise and Customs however later by a clarification dated 24.04.2002 clarified as follows:

Citation :
W.P.No.27919 of 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved On 24.02.2021
Pronounced On 31.03.2021

CORAM

THE HON'BLE MR.JUSTICE C.SARAVANAN

W.P.No.27919 of 2010

(Through Video Conferencing)

M/s.M.G.M.International Exports Ltd.,
Rep. by its Authorised Signatory,
No.1/9
th Street,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 600 004. ... Petitioner

Vs.

The Assistant Commissioner of
Service Tax, Chennai,
Ist Division, 26/1, Mahatma Gandhi Road,
Nungambakkam, Chennai – 600 034. ... Respondent

Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus directing the respondent to make the refund amount of Rs.1,10,999/- to the petitioner with minimum interest.

For Petitioner : M/s.Lakshmi Sriram
For Respondent : Mr.A.P.Srinivas,
Senior Standing Counsel

O R D E R

This Writ Petition has been filed for a writ of mandamus to direct the respondent to refund the tax amount of Rs.1,10,999/- with minimum interest borne by the petitioner under mistake of law. The petitioner was a recipient of service from M/s.IMC Limited. The said company had charged service tax on the petitioner for utilizing the storage facility. The Central Board of Excise and Customs however later by a clarification dated 24.04.2002 clarified as follows:

11.However, in the cases under consideration, the agencies are providing only storage facility for liquid cargo which has been imported or is intended for export. They charge rent for storage of liquid cargo deposited with them. They are not connected with the vessel bringing the goods and are not concerned with customs formalities. They issue invoices to customers towards storage charges and for no other charges. These agencies are not receiving any commission from the principal but only rental for storage facility, whereas a C & F agent's remunerations is in the form of commission. The transactions between the parties are not transactions between principal and an agent but between princpal and principal. These agencies are neither receiving any despatch orders from the owners of the goods, nor are they arranging for the despatch of goods as per their directions by engaging transport, as is done normally by C & F agents. They are also not carrying out any service directly or indirectly in connection with clearing and forwarding operations.

Therefore, services rendered by such agencies, in relation to storage of cargo, cannot be considered to be in the nature of clearing and forwarding and such agencies cannot be considered as ''clearing and forwarding agents''

To know more in details find the attachment file

FAQ :

The main issue was whether the service tax paid by the petitioner for storage facilities, which was later clarified as not taxable for 'clearing and forwarding agents', should be refunded with minimum interest.

The petitioner was seeking a refund of Rs.1,10,999/-.

The petitioner argued that the tax was paid under a mistake of law, as a subsequent clarification from the Central Board of Excise and Customs indicated that the service provided was not taxable under the category of clearing and forwarding.

The clarification stated that agencies providing only storage facilities for liquid cargo, charging rent for storage and not being involved in customs formalities or dispatch of goods, are not 'clearing and forwarding agents'.

A Writ Petition was filed under Article 226 of the Constitution of India, seeking a Writ of Mandamus.