Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise & S. Tax, ... vs M/S Pacific Leather Finishers on 8 December, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
S.T. Appeal No.1797/10
Arising out of O/A No.467/ST/APPL/KNP/2010 dated 13.09.2010 passed by Commr. Customs & C.Ex., Kanpur
For approval and signature:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)
HONBLE MR. B. RAVICHANDRAN, MEMBER (TECHNICAL)
1. Whether Press Reporters may be allowed to see
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
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commissioner of Central Excise & S. Tax, Kanpur
APPELLANT(S)
VERSUS
M/s Pacific Leather Finishers
RESPONDENT (S)
APPEARANCE Shri S. L. Karoliya, Asstt.Commr. (A.R.) for the Department None for the Respondent (s) CORAM:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) HONBLE MR. B. RAVICHANDRAN, MEMBER (TECHNICAL) DATE OF HEARING & PRONOUNCEMENT : 08. 12. 2015 Per Mr. Anil Choudhary :
The Revenue is in Appeal against Order-in-Appeal No. 467/ST/APPL/KNP/2010 dated 13.09.2010 passed by Commr. Customs & C.Ex., Kanpur.
2. The respondent-assessee is an exporter and availed service of commission agent for procuring export order, which is payable to such agent at the rate of 2.7% of FOB value. For the export made between the dates (let export order) between 19th April, 2008 to 2nd July, 2008, the appellant filed refund claim under Notification 41/2007 on 30.03.2009. A show-cause notice dated 04.05.2009, was issued as it appeared to Revenue that the refund claims are time barred. The appellant-assessee contested the show-cause notice, but the same was confirmed observing that the period of refund claim is six months from end of the quarter, in which export was made and accordingly, the appellants claims being were time barred and also for the reason of claiming drawback in few instances. Being aggrieved, the assessee preferred an appeal before the ld.Commissioner (Appeals), who in the impugned order, allowed the appeal on the ground that the adjudicating authority have travelled beyond the show-cause notice, as their claiming drawback was not the issue in show-cause notice. So far as the time bar is concerned, he decided the same in favour of the assessee observing that since it is un-disputed fact that the appellants had paid commission during quarter from July to September, 2008 and the service tax involved therein was paid on October, 2008, the refund claim cannot be held to be time barred, before the right to claim arose.
3. Being aggrieved, the Revenue is in appeal on the ground that under the condition of Notification, the time limit prescribed is six months from the quarter, exports took place.
4. The respondent assessee is absent today in spite of notice. We find that the respondent was also absent on the previous date i.e. 18.09.2015 without any representation for time. Under these circumstances, the appeal is taken up for hearing with the assistance of the ld.A.R. for the Revenue.
5. Heard the ld.A.R. for the Revenue and perused the records.
6. Having considered the rival contentions, we find that the issue of time bar in this appeal is no longer res-integra, and is decided by the Honble Delhi High Court in the case of Sony India Ltd. : 2014 (304) ELT 660 (Del.), wherein the Honble High Court has held that the limitation cannot start to run unless right to receive a claim or refund crystallized. In the present case, the right to claim/refund under Notification No.41/2007-Service Tax crystallized only when the service tax was deposited in October, 2008. Thus, the refund claim was filed within six months on 30.03.2009. Accordingly, we hold that the refund claim is within time. In view of the above findings, we dismiss the appeal of the Revenue and confirm the order-in-appeal. The respondent assessee will be entitled to consequential benefit, if any, in accordance with law.
(Dictated and pronounced in the open Court)
Sd/ Sd/
(B. RAVICHANDRAN) (ANIL CHOUDHARY)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
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S.T. Appeal No.1797/10