Custom, Excise & Service Tax Tribunal
M/S.Ashok Granites Ltd vs Cce & St, Salem on 14 July, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCH
CHENNAI
ST/40872/2015, ST/40874/2015, ST/40875/2015
[Arising out of Order-in-Appeal No.46 48/2015 dated 19.03.2015passed by the Commissioner of Central Excise (Appeals-I), Salem).
M/s.Ashok Granites Ltd. : Appellant
Versus
CCE & ST, Salem : Respondent
Appearance:
Shri S. Kannappan, Advocate, For the Appellant Shri R. Subramaniyan, AC (AR) For the Respondent CORAM :
Honble ShriP.K. Choudhary, Judicial Member Date of Hearing : 27.06.2016 Date of Pronouncement : 14.07.2016 FINAL ORDER No. 41108-41110 / 2016 M/s. Ashok Granites Ltd., the appellant herein are exporters of granites falling under CTH 6802 and 2516 of CETA, 1985. The appellants claimed rebate of service tax paid on specified services used for export of goods under Notification No. 41/2012 ST dated 29.06.2012. The details of the rebate claimed are as under:-
S.No. Claim pertaining to the period Amount claimed 1 01.04.2013 to 30.06.2013 Rs. 1,54,522/-2
01.07.2013 to 30.09.2013 Rs. 5,09,714/-3
01.10.2013 to 31.12.2013 Rs. 1,85,973/-
On adjudication of all the above three claims of the appellants, the Asst. Commissioner granted refund of certain amount and rejected the remaining amount on the ground of time barred as under:-
S.No. Refund sanctioned Rejected Period involved 1 Rs. 22,536/-
Rs. 1,32,016/-
01.04.2013 to 30.06.2013 2 Rs. 4,15,406/-
Rs. 94,308/-
01.07.2013 to 30.09.2013 3 Rs. 55,851/-
Rs. 1,32,122/-
01.10.2013 to 31.12.2013 Aggrieved by the order of the adjudicating authority, the appellants went in appeal before the Ld. Commissioner (Appeals). The Commissioner (Appeals) rejected the appeals and upheld the orders of the adjudicating authority. Hence, the present appeals before this Tribunal.
2. Ld. Counsel, Shri S. Kannappan, Advocate appearing on behalf of the appellant submitted that as per Notification No. 41/2012-ST dated 29.06.2012, the claim for rebate of service tax paid on the specified services used for export of goods shall be filed within one year from the date of export of the said goods. But the goods are exported only after obtaining Let Export Order issued by the proper officer of customs in accordance with the provisions of Section 51 of the Customs Act. Once let export order is given the goods are handed over to the shipping line for loading on to the vessel. Therefore, date of shipment is the date of export. He drew the attention of the Bench to page-8/para 06.1 of the Appeal Paper Book wherein a table details the date of let export order, bill of lading and the date of filing rebate claim is as under:-
S.No. Shipping Bill date Date of Let Export Order Date allowed for shipment Date of shipment Date of filing of refund claim
1.
2.
3. 03.06.2013 22.06.2013 22.06.2013 05.06.2013
02.07.2013 02.07.2013 03.07.2013 03.07.2013 03.07.2013 08.07.2013 08.07.2013 08.07.2013 02.07.2014 02.07.2014 02.07.2014 He further submitted that as per the above details of shipping bill of exports made, it can be derived that date of permitting clearance and loading of goods for exportation by the proper officer is on 08.07.2013 and date of filing rebate claim is on 02.07.2014, which is well within one year from the date of permission by the proper officer. Therefore, it can be concluded that the date of shipment is the date of export and the rebate claims filed by the appellants are not hit by time limit. He submitted a copy of the Notification No. 41/2012 dated 29.06.12 (superseded Notification No. 52/2011-ST) with regard to rebate of service tax paid on services used for export of goods and relied on para 3(g) of the notification wherein under the explanation part, it is clearly mentioned that for the purposes of this clause the date of export shall be 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. Further, he submitted that Section 11 B of Central Excise Act, 1944 is made applicable to service tax vide Section 83 of the Finance Act in terms of sub-section (5) (B) (a) (i) of Section 11 B. In this context, he submitted that combined reading of the said notification, section 51 of the Customs Act and section 11 B of the CEA, clearly prescribes that time limit of one year has to be determined from the date of shipment and not from the date of let export order. He relied on the decision of the Mumbai Bench of the Tribunal in the case of Jain Irrigation Systems Ltd. Vs. CCE, Nashik 2016 (41) STR 837 (Tri.-Mum.) in support of his submissions. He therefore, prayed that the impugned order may be set aside .
3. Ld. AR, R. Subramaniyan, AC, appearing on behalf of the Revenue reiterated the findings of the adjudicating authority as well as the first appellate authority.He further submitted that the LAA correctly rejected the refund claim of Rs. 1,32,122/- in terms of Notification No. 41/2012-ST since, the let export order was issued on 13.09.2013 and 19.09.2013 but the claim was filed on 01.10.2014 and so on in other two claims also. The appellants should have filed the refund claim within one year from the date of issue of let export order. Therefore, the refund rejected by both the authorities is correct and in accordance with law and the impugned order may be upheld.
4. After hearing both sides. On perusal of OIOs of the adjudicating authority, I find that the claims submitted by the appellants were scrutinized thoroughly as per the para 3 (g) of Notification No. 41/2012-ST and he has taken the date of let export order issued by the proper officer as the relevant date to come to the conclusion that the refunds are hit by time bar aspect. Section 51 of Customs Act, 1962, is extracted below for better appreciation:-
Section 51: Clearance of goods for exportation:-
Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation.
A reading of the above makes it clear that the LET Export order precedes the export. In the instant case, the appellants have taken shelter under Section 11B of CEA which has been made applicable to service tax vide Section 83 of Finance Act, 1994, which deals with the claim for refund of duty. The relevant portion of the said section is reproduced below:-
Section 11B... relevant date means
(a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,-
(i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, The Commissioner (Appeals) has observed that the provisions of para 3(g) of Notification No.41/2012-ST dated 20.06.2012 reads as follows : -
g) The claim for rebate of service tax paid on the specified services used for export of goods shall be filed within one year from the date of export of the said goods.
Explanation For the purposes of this clause the date of export shall be 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);
It is seen that in the definition of "relevant date" u/s 11B , there is a mention that if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded leaves India but on the other hand the notification states that the date of export shall be the date on which the LET export order is given. If a limitation period is sought to be imposed in respect of refund claims, it must be introduced by legislation, given the expropriatory consequences of such a limitation period. There is a body of law that essential legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate legislation. The parent enactment must clearly impose such obligations. Sub-ordinate legislation cannot prevail or be made in such cases. The imposition of period of limitation, without statutory amendment, through a notification, therefore, cannot prevail. The Jain Irrigation case is inapplicable to the facts of the present case as what was decided in the said case was as to what was the place of removal which is not the case herein. In view of my above discussions, I am of the view that the appellant is correctly and legally entitled for the refund claim. I therefore, allow the appeal of the appellant with consequential relief, if any, in accordance with law.
(Order Pronounced in the open Court on 14.07.2016) (P.K. CHOUDHARY) JUDICIAL MEMBER BB 1