Custom, Excise & Service Tax Tribunal
M/S Havells India Ltd vs C.C.E., New Delhi on 18 June, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-III Date of hearing/decision: 18.6.2013 Service Tax Appeal Nos.56886 and 56887 of 2013 Arising out of the order in appeal No. LTU/CE/APPL/13/2013 and LTU/CE/APPL/14/2013 dated 8.2.2013 passed by the Commissioner of Central Excise (Appeals), New Delhi. For Approval and Signature: Honble Mr. Rakesh Kumar, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? M/s Havells India Ltd. .. Appellant Vs. C.C.E., New Delhi . Respondent
Appearance:
Shri J.P. Kaushik, Advocate for the appellant Ms. Shewta Bector, A.R. for the respondent Coram: Honble Mr. Rakesh Kumar, Technical Member Final Order No.56704-56705/2013 Per Rakesh Kumar:
The facts giving rise to these appeals are as under:
1.1. The appellant are manufacturer of wires and cables. They were also exporting wires and cables. They were claiming refund of service tax paid on the services used in connection with export of the goods under Notification No.41/2007 and its successor Notification. The period of dispute in Appeal No.ST/56886/2013 is fom January 2009 to March 2009 and the refund amount involved is Rs.4.51,460/- (two refund claims). The period of dispute in respect of Appeal No.ST/56887/2013 is from April, 2009 to August, 2009 and total refund amount involved is Rs.6,83,834/- (one refund claim). The refund claims, in respect of the period from January 2009 to March 2009 had been filed on 6.11.2009 and 29.10.2009 while the refund claim in respect of the period from April 2009 to August, 2009 had been filed on 30.10.2009. Both these refund claims had been filed under Notification No.17/2009-ST dated 7.7.2009, as at the time of filing of refund claims, the earlier Notification No.41/2007-ST dated 6.10.2007 had been superseded by the new Notification No.17/2009-ST dated 7.7.2009. Here , it may also be mentioned that in the Notification No.41/2007-ST, initially the limitation period for filing of refund claim was sixty days from the relevant date, but the same had been increased to 6 months from the relevant date by amending Notification No.32/2008-ST dated 18.11.2008. This limitation period had been enhanced to one year from the relevant date the Notification No.17/2009-ST dated 7.7.2009.
1.2 Refund claims are in respect of the services of CHA, Banking Business Auxiliary Service, and GTA service which according to the appellant had been used in connection with export of wires and cables.
1.3 Refund claims were rejected by two separate orders by the jurisdictional Assistant Commissioner on following three grounds:-
(a) refund claim had been filed under Notification No.17/2009-ST, while the same should have been filed under Notification No.41/2007-ST.
(b) The claims are time barred with regard to limitation period as prescribed under Notification No.41/2007-ST (c ) The services like inland haulage , forwarding charges etc. are not specified for the refund in the Notification.
1.4 On appeals being filed to Commissioner (Appeals), the Commissioner (Appeals) by separate orders dismissed the appeals. Against these orders of the Commissioner (Appeals), these appeals have been filed.
2. Heard both sides.
3. Shri J.P. Kaushik, ld. Counsel for the appellant, pleaded that since at the time of filing of refund claims the Notification No.17/2009-ST dated 7.7.2009 was in force, and since this Notification has been issued in supersession of the earlier Notification No.41/2007-ST, the refund claims have been correctly filed under Notification No.17/2009-ST, that in this regard he relies upon the Boards Circular No.354/256/2009-TRU dated 1.1.2010 on the basis of which the Dibrugarh Commissionerate had issue Trade Notiice No.7/2010 dated 4.2.2010, that in this Circular it has been clarified by the Board that the new Notification No.17/2009-ST dated 7.7.2009 does not bar its applicability to the exports that have taken place prior to its issuance and ,therefore, the scheme prescribed under Notification No.17/2009-ST would be applicable even for such exports subject to conditions that refund claim are filed within the stipulated period of one year from the relevant date and no previous refund claims has already been filed under the previous notification, that both these conditions are satisfied in respect of these refund claims, as both the refund claims were filed for the first time within period of one year from the relevant date, that taking cognizance of the Boards Circular dated 1.1.2010, the Tribunal in the case of Sandoz Polymers Pvt. Ltd. vs. C.C.E., Ahmedabad reported in 2013 (30) STR 527 has held that refund claims filed on or after 7.7.2009 would be governed by the limitation period prescribed in Notification No.17/2009-ST, that in view of this, the refund claims have been correctly filed under Notification No.17/2009-ST, that Departments contention that the same should have been filed under Notification No.41/2007-ST is totally incorrect, that these refund claims have been filed within limitation period , as while the refund claim for the period from April, 2009 to August 2009 has been filed on 30.10.2009, the refund claims for the period from January 2009 to March 2009 were filed on 29.102009 and 6.11.2009, that rejection of refund claim on limitation is not sustainable, that as regard the third ground regarding a number of services being not covered by the Notification, this is also not correct , that the Commissioner (Appeals) has not considered appellants submissions in this regard and that in view of above, the impugned order upholding the rejection of refund claims is not sustainable.
4. Ms. Shewta Bector, ld. Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and emphasized that Notification No.17/2009-ST being prospective cannot be given retrospective effect, and hence the notification No.17/2009-ST issued on 7.7.2009 would not be applicable in respect of exports made during the period prior to 7.7.2009, that refund claims would therefore, be governed by the limitation period prescribed in Notification No.41/2007-ST, that services like inland haulage , forwarding charges etc. are not covered by the Notification No.41/2007-ST and hence rejection of refund in respect of these services have been correctly upheld. She therefore, pleaded that there is no infirmity in the impugned order.
5. I have considered the submissions from both the sides and perused the record.
6. In appeal No.ST/56886/2013, the exports had been made during the period from January 2009 to March 2009 and the refund claim had been filed on 29.10.2009 and 6.11.2009. In appeal No.ST/56887/2013, the peiod of export is from April, 2009 to August, 2009 and the refund claims had been filed on 30.10.2009. In both the cases, the refund claims have been filed after 7/7/2009 and within one year from the relevant date. The point of dispute is as to whether these refund claims would be governed by the Notification No.17/2009-ST and the limitation period prescribed therein or would be governed by Notification No.41/2007-ST and limitation period of six months prescribed therein. In this regard, it is seen that Notification No.17/2009-ST dated 7.7.2009 had been issued in supersession of the Notification No.41/2007-ST and at the time of filing of refund claim , it is this Notification was in force. In terms of the Boards Circular No.354/256/2009-TRU dated 1.1.2010, new Notification No.17/2009-ST does not bar its applicability to the exports that have taken place prior to its issuance and, therefore, the scheme prescribed under Notification No.17/2009-ST would be applicable even for such exports subject to conditions that refund claims are filed within the stipulated period of one year and no previous refund claims have already been filed under the previous notification. Thus, during the period on or after 7.7.2009, if an exporter who had made exports prior to 7.7.2009, but had not filed refund claims under Notification No.41/2007-ST prior to 7.7.2009, he would be governed by the new notification if he has filed refund claim on or after 7.7.2009, even though the exports had taken place prior to 7.7.2009 . There is no dispute that the conditions prescribed in the Boards Circular are satisfied inasmuch as the refund claims had been filed within one year from the relevant date and there were no refund claims filed under the previous Notification. The impugned order rejecting the refund claims on the ground that same should have been filed under previous notification and within limitation period prescribed therein is not therefore sustainable and is liable to be set aside.
7. As regard the question as to whether certain services were covered by any of the notifications or not, I find that the Commissioner (Appeals) in the impugned orders have not given any specific findings in respect of these services. Therefore, this issue has to be decided after taking into account the nature of these services vis-a- vis the services prescribed in the notification. For this purpose, these matters , therefore, would have to be remanded to the original adjudicating authority.
8. In view of the above discussion while holding the refund claims have been correctly filed under new Notification No.17/2009-ST dated 7.7.2009 and are within time, the impugned orders are set aside and the matters are remanded to the original adjudicating authority for deciding refunds after considering the eligibility of the services for refund in terms of the notification. If the disputed services are covered by the notification, the refund claims must be allowed and this point must be decided after taking into account the Appellants submissions in this regard.
9. The appeals stand disposed of as above.
(Rakesh Kumar) Member (Technical) scd/ 6