Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs Chandrashekhar Exports on 28 July, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. ST/88/10 (Arising out of Order-in-Appeal No. PII/PAP/226/2009 dated 11.11.2009 passed by Commissioner of Central Excise (Appeals), Pune) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) ================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
Commissioner of Central Excise, Pune Appellant Vs. Chandrashekhar Exports Respondent Appearance:
Shri R.K. Das, Deputy Commissioner (AR) for appellant Shri V.B. Gaikwad, Advocate for respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 28.07.2015 Date of Decision: 28.07.2015 ORDER NO Per: M.V. Ravindran This appeal is directed against Order-in-Appeal PII/PAP/226/2009 dated 11.11.2009.
2. Heard both sides and perused the records.
3. On perusal of the records, it transpires that the Revenue is aggrieved by the Order-in-Appeal on the ground that the first appellate authority has set aside the order-in-original which has rejected the refund claim filed by the respondent.
4. Learned D.R. would submit that the appellant had filed refund claim of the service tax paid on the services received and utilized for the goods exported during the period January 2008 to March 08 on 31.03.2009 which is beyond the period of six months as mandated in Notification No.41/2007-ST dated 06.10.2007 as amended from time to time. He would submit that the first appellate authority has incorrectly appreciated the facts and extended the benefit of Notification which is against the provisions of law. He would submit that the first appellate authority has recorded that the respondent should have filed the refund claim for the quarter ended March 2008 on or before 30.09.2008. Despite such clear-cut finding, the first appellate authority has set aside the impugned order before him. He would submit that it is settled law that conditions of the Notification has to be fulfilled in order to get the benefit of the said notification as decided by the Honble Apex Court in the case of M. Ambalal & Co. 2010 (260) ELT 487 (S.C.).
5. Learned Counsel appearing on behalf of the respondent would submit that the dispute is only regarding the time period for filing the refund claim. He would submit that there is no dispute as to the fact that the respondent is eligible for the amount of refund claim. He would submit that the first appellate authority has considered the issue holistically and held that filing of the refund claim is procedural lapse which can be condoned. He would rely upon the decision of this Tribunal in the case of Sandoz polymers Pvt. Ltd. 2013 (30) STR 527 and Raymond Ltd. 2015 (38) STR 441 for the said proposition and also submit that in both the cases as stated by him, the very same issue was decided in favour of the assessee therein.
6. On consideration of submissions made by both sides, we find that there is no dispute as to the fact that the appellant had exported the goods and had utilized the services of the service provider for such exports. It is also not in dispute that appellant is eligible for the refund of the amount of service tax paid by the service providers. The dispute is regarding whether the appellant can get the refund of the amount having filed the refund claim on 31.03.2009 instead of 30.09.2008. We find that the first appellate authority has correctly recorded the fact that it is settled principle as to Rules and Notifications are issued from to time to supplement the provisions of main Act and grant of relief of refund of service tax paid on services used in export of goods has to be sanctioned to the respondent when conditions prescribed in the main Act are fulfilled. We also find strong force in the submissions made by learned Counsel for the respondent that this Bench in the case of Raymond Ltd. (supra) has held as under:-
5.?I have carefully considered the submissions made by both the sides. In the present case the refund claim pertains to the quarter October-December, 2008. The appellant have filed the refund claims on 30-7-2009 for the refund under Notification 41/2007-S.T. The said Notification was amended vide Notification No. 17/2009, dated 7-7-2009 so as to allow filing of the refund claim within a period of one year from the date of export of the goods. Inasmuch as the appellant filed the refund claims in July, 2009 for the quarter ending October-December, 2008, the refund claims are within a period of one year from the date of export of the goods. Therefore, the appellant would be eligible for the benefit of refund under the aforesaid Notification subject to satisfaction of other conditions stipulated in the Notification. 5.1?The Honble High Court of Bombay, which is the jurisdictional High Court, in the case of Uttam Steel Ltd. (supra) has held that when procedure and practice are amended they have to be amended retrospectively and the benefit allowed if the procedures are satisfied. This Tribunal in the case of Sandoz Polymers Pvt. Ltd. (supra) has also held the same view. Further, the C.B.E. & C. in Circular dated 12-3-2009 cited supra, have also held that the so long as the refund claims is filed within the extended period of time provided for in the Notification, the assessee would be eligible for the benefit of refund, subject to satisfaction of other conditions stipulated in the Notification.
6.?Following the above decisions, I hold that, in the present case also, the appellant is eligible for the benefit of refund claim filed under Notification No. 41/2007 as amended by Notification No. 17/2007 and the time bar aspect is not attracted. However, the appellant has to satisfy that they have fulfilled the other conditions stipulated in the Notification. Therefore, the matter is remanded back to the original adjudicating authority only for satisfying that the appellant has fulfilled the other terms and conditions stipulated in Notification No. 41/2007 and the time-bar issue will have no application.
6.1 The above reproduced ratio of the Tribunal is squarely applicable in this case also and the conclusion reached by the first appellate authority cannot be faulted with.
6.2 On the issue and the reliance placed by learned D.R. on the judgement of the Honble Apex Court in the case of N. Ambalal & Co (supra) we find that the said judgement of the Honble Apex Court was in respect of benefit of Notification and if the conditions laid down in the Notification are not fulfilled. While in the case in hand the main conditions as laid down in the act are fulfilled i.e. there has to be export of goods and the service tax liability has to be paid to the service provider and the same must have been used for the export of the goods which conditions are fulfilled by the respondent.
7. In view of the foregoing we hold that the impugned order is correct and legal and does not require any interference.
8. The appeal filed by the Revenue is rejected.
(Dictated in Court) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk ??
??
??
??
1 6Appeal No. ST/88/10