Custom, Excise & Service Tax Tribunal
H.R. International (Unit-Ii) vs Cce, Ludhiana on 12 June, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
SINGLE MEMBER BENCH
Appeal No. ST/3292/2012
(Arising out of OIA No.172/ST/Appl/Chd-i/2012 dt.31/7/2012 passed by the CE(Appeals), Chandigarh)
Date of Hearing: 01.11.2013
Date of Prouncement:12.06.2014
H.R. International (Unit-II) Appellants
C-107,-108, Focal point, Jalandhar
Vs.
CCE, Ludhiana Respondent
Appearance:
Shri Sudhir Malhotra, Advocate for the Appellants
Shri Sanjay Jain, DR for the Respondent
CORAM:
Hon'ble Mr. Manmohan Singh, Member (Technical)
FINAL ORDER No.52434/2014
Per MANMOHAN SINGH:
Appellant M/s.H.R.International, Jalandhar has come in appeal before the Tribunal against Order-in-Appeal nO.172/ST/APPL/CHD-I/2012 dated 13.7.2012 wherein Commissioner (Appeals) has upheld the order passed by the adjudicating authority. The adjudicating authority has held that provisions of section 11B though made applicable to service tax, were not applicable in case of refunds under Notification No.41/2007-ST. Accordingly refund claim of Rs.52,711/- was rejected.
2. Brief facts of the case are that the appellant registered under service tax registration and engaged in the export of hand tools had filed a claim of Rs.52,711/- under Notification no. 41/07 dated 06.10.07 on 18.12.2009.
3. During the scrutiny of refund claim, it was observed that the refund claim was filed on 18.12.2009 for the period 08.12.2008 to 31.03.2009. As per para 2(e) of ibid notification the claim for refund was required to be filed on a quarterly basis within 180 days from the end of the relevant quarter during which the said goods had been exported. Accordingly, it was observed that the claim filed by the appellant for Rs.52,711/- was hit by bar of limitation and was inadmissible.
4. Accordingly, the appellant were show caused proposing rejection of refund claim of Rs.52,711/-. The adjudicating authority vide impugned order rejected the refund claim of Rs.52,711/- as proposed in the show cause notice.
5. Issue involved in this appeal before Tribunal is regarding admissibility of refund claim on service tax filed in terms of Notification No.2007-ST dated 6.10.2007 on the ground that appellant have not filed refund claim within time limit prescribed in para 2(e) of above notification.
6. Appellant have taken point before Commissioner (Appeals) that as per section 83 of the Act, provisions of section 11B of Central Excise Act, 1944 are applicable to the Act and accordingly the provisions of section 11B of Central Excise Act, 1944 are applicable allowing them the period of one year to claim refund. Commissioner (Appeals) while going through the facts in para 8 of his order have observed as under:-
The subject refund claim has been filed in terms of notification no. 41/2007-ST dated 6.10.2007 which provides exemption from service tax on specified taxable services received by an exporter and used for export of goods. Proviso (b) of ibid notification stipulates that the exemption claimed by the exporter shall be provided by way of refund of service tax paid on the specified services used for export of the said goods and proviso (f) of notification provides that exemption of refund of service tax paid on the specified services used for export of said goods shall not be claimed except under this notification. Para 2 (e) of notification no. 41/2007 ST dated 6.10.2007 specifically prescribed time limitation for filing of refund claim under ibid notification. It is clear from the above referred provisions of notification no. 41/2007-ST dated 6.10.2007 that exemption provided under ibid notification has been given effect by way of filing of refund clam and time limitation provided for filing of refund claim under ibid notification alone is applicable in this case. The provisions of Section 11B of Central Excise Act, 1944 as made applicable to service tax are not applicable to refund claim filed in this case to claim exemption under notification no. 41/2007-ST dated 6.10.2007. The ratio of decisions of Honble Supreme Court and Tribunal referred by the appellant is also not applicable to the facts of the case because this is not a case of refund of excess paid service tax in terms of provisions of Section 11B of Central Excise Act, 1944 made applicable to service tax.
7. Ld.Counsel of the appellant has taken the same ground as has been taken before the Commissioner (Appeals) and basically referred to section 83 of Finance Act, 2003 wherein the provisions of following section of Central Excise Act, 1944, as in force from time to time, shall apply, in relation to service tax as these apply in relation to duty of excise.
8. For ready reference section 83 of Finance is reproduced as under:-
The provisions of following section of Central Excise Act, 1944, as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to duty of excise:-
9C, 9D,11B,11BB, 11C, 12, 12A, 12B, 12C, 12D, 12E, 14, 14AA, 15, 33A, 35F to 35-O (both inclusive), inclusive) 35Q, 36, 36A 36B 37A, 37B,37C, 37D 38A and 40.
9. He contended that provision of section 11B have now been made applicable to service tax, limitation period of one year will also become applicable to their refund claim of service tax in terms of Notification No.41/2007-ST dated 6.10.2007.
10. On the other hand, ld.DR reiterated the findings contained in the order of Commissioner (Appeals) and subsequently referred to Para 8 of his order wherein it has clearly been held that exemption under Notification No.41/2007-ST dated 6.10.2007 will be available by way of refund of service tax paid specifying services used for export of the said goods. Para 2(e) of Notification No.41/2007-ST dated 6.10.2007 specifically prescribed time limit of six months for filing refund claim under Notification No.41/2007-ST dated 6.10.2007. Ld.DR has rightly pointed out that facility of refund has been provided under Notification No.41/2007-ST dated 6.10.2007 by way of filing refund claim and time limit of six months provided for filing refund claim was alone applicable.
11. Notification No.41/2007-ST dated 6.10.2007 wherein specific time limit of six months is allowed for filing refund claim under the said notification. Para 2 (e) of the notification is reproduced below:-
.
Notification No.41/2007-Service Tax New Delhi, the 6th October, 2007
2. The exemption contained in this notification shall be given effect to in the following manner, namely:-
(e) the claim for refund shall be filed on a quarterly basis, within sixty days from the end of the relevant quarter during which the said goods have been exported:
Provided that the said goods shall be deemed to have been exported on the date on which the proper officer of Customs makes an order permitting clearance and loading of the said goods for exportation under section 51 of the Customs Act, 1962 (52 of 1962);
12. This Notification has been further been amended to increase time limit of sixty days to one hundred eighty days i.e. six months vide Notification No.32/2008-ST. Relevant notification is reproduced for ready reference:-
New Delhi, the 18th November, 2008 Notification No.32/2008-Service Tax In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.41/2007-Service Tax, dated the 6th October, 2007 which was published in the Gazette of India, Extraordinary, Part II, section 3, sub-section (i) vide number G.S.R. 645(E), dated the 6th October, 2007, namely:-
In the said notification,-
(1) in paragraph 2, in sub-paragraph (e), for the words sixty days, the words six months shall be substituted;
(2) in the Schedule, against Sr.No.3, in column (4), after item (i), the following item shall be inserted, namely:-
(ia) where the buyer of the said goods does not require testing and analysis of the said goods, but testing is statutorily stipulated by domestic rules and regulations, the exporter shall furnish copy of such rules or regulations stipulating testing and analysis of the said goods; and.
13. Heard both sides and examined the records.
14. I have also perused the judgements furnished by ld.Advocate and find that none of the judgements cover present situation. Quoted judgments are relating to refund claim under section 11B. I have also examined both the notifications as referred above and also gone through judgement of Commissioner (Appeals). It is observed that Commissioner (Appeals) has examined the matter in depth. He has rightly distinguished the applicability of section 11B and applicability of notification No.41/2007-ST. Concept that exemption notification has to be strictly construed has been appreciated.
15. In view of above, I find no reason to interfere in the findings. Accordingly appeal filed by the appellant is dismissed.
(Pronounced in the open court on 12.06.2014)
( Manmohan Singh) Member(Technical)
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