Custom, Excise & Service Tax Tribunal
Sakay Overseas vs Cce, Ludhiana on 17 April, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
BENCH-SM
Service Tax Appeal No. ST/55743/2013-STSM
[Arising out of Order-in-Appeal No.270/ST/AL/LDH/2012 dated 19.11.2012 passed by the Commissioner (Appeals), Customs & Central Excise, Chandigarh].
Sakay Overseas Appellant
Vs.
CCE, Ludhiana Respondent
Present for the Appellant : Shri.Harvinder Singh, Advocate Present for the Respondent:Shri.V.P. Batra, DR Coram:HONBLE MR. MANMOHAN SINGH, TECHNICAL MEMBER Date of Hearing:17.04.2013 Final ORDER NO. 56470/2013 DATED:17/04/2013 PER: MANMOHAN SINGH This is an appeal filed by M/s Sakay Overseas, 410,411 Leather Complex Kapurthala Road Jalandhar (Punjab) against the Order-In-Appeal No 270/ST/A/LDH/2012 dated 15.11.2011 rejecting their refund claim of Rs 321953/-.
2. The brief facts of the case are that the appellant are registered under the Service Tax Registration No AALFS7861GST0011 and are engaged in the export of leather goods. They had filed their claim for refund of Service Tax of Rs 3,4,806/- under Notification No 41/07/ST dated 06.10.07 on 29.09.2010 pertaining to the period 1.1.2009 to 31.03.2009 in accordance with the provision laid down in para 2 (e) of the Notification No 41/07-ST dated 06.10.2007. The refund claim is on account of the service tax paid under the Business Auxiliary Services provided by the commission agent located outside India/ foreign agents.
3. During the scrutiny of refund claim of Rs 3,40,816/- it transpired that the refund claim pertained to quarter ending March 2009 filed on 29.09.2009, while the claim of Rs 3,21,953/- on account of commission paid to the foreign agents, was hit by time bar limitation, as it pertained to the export made prior to the quarter ending March 2009. This amount was accordingly disallowed after observing the due process of law vide the Order-in-Original No 21/Jal/DC/2011 dated 07.02.2011 passed by the Deputy Commissioner, Central Excise, Division, Jalandhar. The appellant filed an appeal before the Commissioner (Appeals), Customs & Central Excise Chandigarh. The O-I-O No 21/Jal/DC/2011 dated 07.02.2011 was upheld by the Commissioner (Appeals) Chandigarh I vide his order-in-Appeal No 270/ST/Al/LDH/2012 dated 19.11.2012. The appellant have come in appeal to the Appellate Tribunal against the O-I-A.
4. Mr.Harvinder Singh, Counsel of the party appeared for the assessee and argued for grant of refund against Order No.270/ST/AL/LDH/2012 dated 19.11.2012 passed by the Commissioner (Appeals), Chandigarh. Appellant has claimed refund under Notification No.41/2007 ST dated 6th October, 2007. It is the appellants contention that as per notification, they have deposited the service tax under reverse charge method on a specific date and afterwards they have filed the refund claims within the quarter ending from the date of payment of service tax. Accordingly, claimed that they have paid service tax as per rule 6 of Cenvat Credit Rules. He mentions that in section 6 it is stated that service tax will be payable on the specified date immediately falling the calendar month in which the payments are received towards the value of taxable services.
5. He submitted a chart stating that they have paid the commission to their overseas agent on 12.01.2009 and thereafter paid the service tax on 21.03.2009 for the exports made during July 2008 to October 2008. According to him the date of the payment of service tax is crucial for claiming the refund. Accordingly they had filed the refund within the quarter ending date of the payment of service tax.
Sr. Shipping Bill No. Shipping Bill Date Date of Realisation of export proceeds as per BRC Date of Commission paid to Overseas Agents Amount of Commission Service Tax deposited Date under Reverse Charges Method under Rule 6 Service Tax Refund Claim Filed Date 1 1091321 19.07.2008 11.09.2008 12.01.2009 26,00,239/-
21.03.2009 29.09.2009 2 1091239 18.07.2008 11.09.2008 12.01.2009 21.03.2009 29.09.2009 3 1092173 25.07.2008 28.08.2008 12.01.2009 21.03.2009 29.09.2009 4 6550738 05.08.2008 11.09.2008 12.01.2009 21.03.2009 29.09.2009 5 6574780 13.08.2008 11.09.2008 12.01.2009 21.03.2009 29.09.2009 6 1093165 31.07.2008 12.09.2008 12.01.2009 21.03.2009 29.09.2009 7 1093995 07.08.2008 21.10.2008 07.01.2009 21.03.2009 29.09.2009 8 1094733 14.08.2008 31.10.2008 07.01.2009 21.03.2009 29.09.2009 9 1094571 12.08.2008 05.09.2008 12.01.2009 21.03.2009 29.09.2009 10 1095016 16.08.2008 01.10.2008 12.01.2009 21.03.2009 29.09.2009 11 1097873 02.09.2008 10.11.2008 07.01.2009 21.03.2009 29.09.2009 12 1098393 05.09.2008 19.11.2008 12.01.2009 21.03.2009 29.09.2009 13 1098325 04.09.2008 16.12.2008 07.01.2009 21.03.2009 29.09.2009 14 6663880 13.09.2008 17.10.2008 12.01.2009 21.03.2009 29.09.2009 15 6688159 22.09.2008 06.01.2009 07.01.2009 21.03.2009 29.09.2009 16 3404722 08.10.2008 17.10.2008 12.01.2009 21.03.2009 29.09.2009
6. However, ld. DR points out that the specific notification No.41/2007 is for grant of refund of service tax on business auxiliary service at Sl.15 and a condition has also incorporated. The relevant para of Notification No.41/2007 is as under:-
2 (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);
7. DR also points out that the judgement of CESTAT in the case of Spark Engg. P. Ltd. vs. Commissioner of Central Excise, Ghaziabad in which similar issue came for consideration before CESTAT and Tribunal held that as the specific dates stands provided in respect of goods exported, the same has to be adopted for the purpose of limitation.
8. After considering the submissions made by the both sides, the main issue involved in this case is whether the refund claim on account of the commission paid to the foreign agent filed by the appellant on the export of services by them has been filed within the time limit as prescribed under the notification no 41/2007-ST dated 06.10.2007 or not.
9. Bench has carefully gone through the ibid notification and the provision laid down and the relevant records of this case. In this case, the goods have been exported from july 2008 to October 2008 as evident from the chart submitted by the counsel at the time of hearing and the copy of the BRC submitted by the appellant along with the appeal memo. The refund claim have been filed on 29.09.2010. For the grant of refund in terms of the ibid notification, the date of export is the relevant for filing the refund claim. While examining the identical case the Appellate Tribunal in case M/s Spark Engg. P.Ltd Vs Commissioner of Central Excise, Ghaziabad has held The notification in question clearly requires an assessee to file refund claim on quarterly basis within a period of 60 days form the end of relevant quarter during which the foods stands exported. Such period prescribed by the notification, cannot be extended by courts working within the parameters of the excise laws. Though I find that refund claims could not be filed within the said period as no duty deposits were made by the appellant but as held by various courts, the Tribunal acting within the framework of the act/rules/notifications cannot introduce any provision of the same. As such the period prescribed in the Notification cannot be extended on the ground of the impossibilities of adherence to the same. The appellant could have deposited the said service tax will within time and could have failed refund claim of the same within the period prescribed under Notification. Having not done so, I find no merits in the appellants claim to extend the limitation period by artificially considering the date of deposits as the relevant date.
10. The appellant have also taken an alternative plea that u/s 83 of the Finance Act, 1994, provisions of section 11B of Central Excise act have been made applicable to service tax provisions. As per the definition of relevant date appearing in section 11B, the same is to be considered as the date of payment of duty. In as much as the refunds were filed within the limitation period prescribed under section 11B, by treating the date of payment of duty as relevant date, the same is not barred by limitation.
11. Bench has gone though the provisions of section 11B. Relevant date in case of goods exported out of India where refund of excise duty paid is available in respect of goods exported or in respect of materials used in the manufacture of such goods is the date on which the ship or aircraft in which the such goods are loaded leaves India. Admittedly the present case relates to refund of duty paid on the excisable materials used in the manufacture of goods ultimately exported, the date on which the ship or aircraft has left India is the relevant date, in terms of sub-section B(a)(i) of section 11B. The appellants contention that in terms of sub-section (f), the date of payment of duty would be relevant, cannot be accepted in as much as the said sub-section is residuary provision as is clear from the use of expression in any other case. As the specific date stands provided in respect of goods exported, the same has to be adopted for the purpose of limitation. It is not the appellants plea that the goods were exported on a later date and the refund claims were filed within the period of 60 days from the quarter during which the said exports were made, I find no infirmity in the views adopted by the authorities below.
12. In view of the above, Counsel of the party has not been able to make out a case for which appeal is not able to sustain and liable for dismissal.
13. Appeal is dismissed.
[Dictated & Pronounced in the open Court].
(MANMOHAN SINGH) TECHNICAL MEMBER Anita ??
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