Custom, Excise & Service Tax Tribunal
Bandedkar Brothers P. Ltd vs Commissioner Of Central Excise on 21 July, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. ST/207/10 (Arising out of Order-in-Appeal No. CEX/Goa/VSK/01/2010 dated 21.01.2010 passed by Commissioner of Central Excise (Appeals), Goa) 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?
Bandedkar Brothers P. Ltd.
Appellant Vs. Commissioner of Central Excise, Goa Respondent Appearance:
Shri L. Badrinarayan, Advocate for appellant Shri R.K. Das, Deputy Commissioner (AR) for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 21.07.2015 Date of Decision: 21.07.2015 ORDER NO Per: M.V. Ravindran
This appeal is directed against Order-in-Appeal No. CEX/Goa/VSK/01/2010 dated 21.01.2010.
2. The relevant facts that arise for consideration are that appellant filed refund claim of Rs.1,56,732/- on 23.05.2008, that was in respect of services received by them and used for export of goods. The said refund claim was rejected by both the lower authorities on the ground that the goods were exported in December 2007 and refund claim was filed on 23.05.2008 which is beyond the period of sixty days as stated in the Notification No. 41/2007-ST dated 06.10.2007.
3. Learned Counsel who took us through the entire case records and submits that the refund claim was filed within 60 days from the end of the quarter as indicated in the Notification. His further submission is that revised limitation period was introduced by Notification No.32/2008 dated 18.11.2008 and he reads the same to submit that the said Notification talks about substitution of words 60 days by the words six months which would indicate that Notification 41/2007-ST dated 06.10.2007 has to be read as granting a time of six months from the end of the quarter for filing the refund claim. He would rely upon the decision of the Tribunal in the case of CCE Surat vs. Essar Steel Ltd. 2010 (20) STR 769 and more specifically the paragraphs 4 and 5.
4. Learned D.R. on the other hand would submit that the amendment to Notification No.32/2008-ST dated 18.11.2008 which extends the time limit for filing refund claim is not retrospective in nature. It is his submission that the time limit granted under Notification No.41/2007 needs to be adhered to. He also relies upon the final order No.A/301/11/SMB/C-IV dated 20.07.2011 passed by this Bench on the same issue wherein it is held that the period of 60 days has to be computed as per Notification 41/2007.
5. We have considered the submissions made by both sides and perused the records.
6. It is undisputed that appellant is eligible for refund of the amount of service tax which has been paid by him to the service providers and utilized for manufacturing / export of the goods. It is also undisputed that the goods were exported in December 2007 and the refund claim for the said amount was filed on 23.05.2008. The question which falls for our consideration is whether the time period extended for filing the refund claim by Notification 32/2008-ST is applicable in this case or otherwise. We find that the issue of whether the benefit of filing refund claim within six months from the date of last quarter was considered by the Tribunal in the case of Essar Steel (supra). In similar set of facts. In that case the same issue arose and Tribunal went into great detail as to what will be the effect of the substitution of words as indicated in Notification 32/2008-ST for increasing the period of filing the refund claim from 60 days to 6 months. We reproduce the findings as recorded at para 4 and 5.
4.?I have considered the submissions made by both the sides. There can be no dispute that exemption notifications have to be construed strictly and liberal construction enlarging the term and scope of notification is not permissible. However in this also, the notification has been enlarged by the Board itself by issue of a circular clarifying that the refund claim for the quarter ending June 2008 can be filed upto 31 December 2008. It was submitted by the learned DR that this clarification was issued in view of the fact that there was time available for filing refund for the quarter ending June 2008 when the notification amending 41/07-S.T. was issued. I am unable to appreciate this view. It has to be noted that when the notification was issued in November, the refund claim for the quarter ending September 2008 could have been filed and time was available. Therefore by extending the benefit of time limit of six months to the quarter ending June 2008 also, the scope of the notification was enlarged. Further I also take note of the fact that clarification was issued by the Board since it was sought in respect of the refund claim for the period ending June 2008. I do not know what view Board would have taken in case a clarification was sought whether the word substituted to have retrospective effect or not, or whether the refund claim filed within six months but after two months and pending should be considered or not. In any case while Boards circular which are favourable to the appellants are to be interpreted liberally, the same is not applicable when the Board restricts the benefit of notification. However the fact remains that by issue of this clarification, the Board enlarged the scope of notification and also extended the benefit of amendment retrospectively but only in respect of a particular quarter. It is the submission of the respondents that in view of the decision of the Honble Supreme Court in the case of Indian Tobacco Association, the word substituted would mean that the notification benefit will have to be extended to them also. In the case of Indian Tobacco Association, notification was issued extending the benefit of 2% incentives in respect of exports made from Inland container depots and Guntur was not mentioned in the notification dated 7-4-97. However on a representation made by the association, an amendment to the notification was made in November 1997 whereby for the words Ludhiana & Guntur, Ludhiana, Hyderabad, Nagpur, Faridabad, Guntur and Varanasi were substituted. The representation made by the association to the government to extend the benefit of the incentives in respect of exports made by the period from 1-4-97 to 26-9-97 was rejected by the government. Thereafter the matter reached the Honble Supreme Court and Honble Supreme Court in para 22 of the order observed as follows :
22.?Had the intention of the Government of India been only to extend the said benefit only to the exporters from any other seaport, airport or inland container depot, recourse to the proviso appended to sub-clause (iv) of clause (2) of the notification dated 7-4-1997 could have been taken. But by reason of the notification dated 27-11-1997, one seaport and six inland container depots have been added. The last two words in the category of seaport, namely, Tuticorin and Vishakhapatnam had been substituted by the words Tuticorin. Vishakhapatnam and Kakinada. Similarly the last two words, namely, Ludhiana and Hyderabad in the category of inland container depot had been substituted by the words Ludhiana. Hyderabad, Nagpur, Agra, Faridabad, Jaipur, Guntur and Varanasi. It, therefore, cannot be said to be a case where some other seaports or inland container depots have been added for the purpose of extension of the benefit but the newly added seaports or inland container depots had been made a part of the original notification. The Union of India while making a subordinate legislation had advisedly used the word substitution in place of the word addition. The object and purport of the subsequent notification issued by the Union of India was, thus, to grant the same benefit which had been granted to the exporters who were registered at the other seaports, airports or inland container depots as specified in the notification dated 7-4-1997 but also to those exporters, who had been exporting from such seaports or inland depots as specified in the amended notification dated 27-11-1997.
5.?On this ground it was claimed by the respondent that in this case also, the substitution of words six months has to be treated as existing in the original notification. However I take note of the fact that in para 26 of the very same decision, Honble Court observed that the the Court having regard to the purport and object sought to be achieved by the legislature may construe the word substitution as an amendment having a prospective effect but such a question does not arise in the instant case. It was submitted on behalf of Revenue that in that case there was no substantive benefit involved. However this is not correct. In view of the fact that by inclusion of Guntur in the list, the exporters who would not have been eligible for 2% of the export value as incentive became eligible for the amount. Similar would be the result by substituting of six months in place of two months in this case also. Therefore the whole issue boils down to as to whether the word substitution has to be treated as existing in the original notification under the circumstances or not. Taking note of the fact that Board itself enlarged the scope of notification and extended the benefit for an earlier quarter by issue of a clarification and also the decision of the Honble Supreme Court in the case of Indian Tobacco Association wherein retrospective effect was given to the benefit of 2% DEPB benefit to the exporters, I feel that in this case also conclusion has to go in favour of the respondent. Further another point that goes in favour of the respondents as submitted by the learned advocate is the fact that the notification prescribes various conditions in the proviso to the first paragraph and in the second paragraph the manner of extension of benefit of the notification has been explained and therefore a view can be taken that the second para relates mainly to procedural aspect. 6.1 It can be seen that the Tribunal gone into great detail as to whether the refund claim is to be filed within six months or otherwise and has held in favour of the assessee. We find that the judgement of the Tribunal in the case of Essar Steel (supra) is detailed one and considered the law as has been laid down by the Honble Apex Court.
6.2 Learned D.R. has relied upon the judgement of this Bench in the case of Greenspan Agritech Pvt. Ltd. dated 20.07.2011 (supra). On perusal of the order we do not find that this Bench has held that amendment Notification 32/2008 will not be applicable and the period of 60 days will be applicable for the period in question. On perusal of the Judgment we find that the Bench has not given any reasoning to hold so while the Tribunals judgement in the case of Essar Steel (supra) is a detailed one. In our view the detailed reasoning given in the judgement in Essar Steel will hold field and has to be followed.
6.4 In view of the foregoing and in the facts and circumstances of the case, we hold that the impugned order is incorrect and is liable to be set aside and we do so.
7. Impugned order is set aside and the appeal is allowed with consequential relief, if any.
(Dictated in Court) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk ??
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