Custom, Excise & Service Tax Tribunal
M/S. Gran Overseas Ltd vs C.C.E. Delhi-I on 13 December, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Appeal No. ST/512,513/2011-ST(SM)
[Arising out of Order-in-Appeal No. 438, 439/ST/DLH/2010 dated 29.12.2010, by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi].
For approval and signature:
Hon'ble Mr. Ashok Jindal, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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 Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Gran Overseas Ltd. .Applicants
Vs.
C.C.E. Delhi-I .Respondent
Appearance:
Shri Vaibhav Narang, Advocate for the Applicants Shri Dharam Singh, DR for the Respondent CORAM:
Hon'ble Mr. Ashok Jindal, Member (Judicial) Date of Hearing: 13.12.2016 FINAL ORDER NO. 55876-55877/2016-ST(SM) Per Ashok Jindal:
Appellant have filed this appeal against the impugned orders rejecting their refund claim filed under notification number 41/2007 on the ground of limitation.
2. The facts of the case are that the appellant have filed 4 refund claims for the period October 2007 to September 2008 with a certain delay but within one year of the exports. The refund claims filed by the appellants were rejected as time barred as per the notification number 41/2007 which prescribed that refund claim should be filed within six months from the date of export. The appellant is in appeal against these orders.
2. The Ld. Counsel for the appellant submits that the mere rejection of the refund claim is only a procedural lapse on the part of the appellant not to file the refund claims within six months which has later been extended in 2009 to a period of one year. It is also submitted that in the case of CCE Pune Vs. Chandrashekhar Exports 2015-TIOL-2448-CESTAT-MUM it has been held that time limit prescribed under notification no. 41/2007 ibid is only a procedural and substantial benefit of notification cannot be denied to the assessee. Therefore, refund claim is to be granted.
3. On the other hand Ld. AR oppose the contention of the Ld. Counsel and submits that as per section 11B of the Central Excise Act there is a time limit prescribed to file the refund claim within one year and time limit cannot be extended.
4. Heard both the sides and considered the submission.
5. On careful consideration of submissions made by both the sides, I find that a similar issue came up before this Tribunal in the case of CCE Pune Vs. Chandrashekhar Exports (Supra) wherein this Tribunal observed as under:
6. On consideration of submissions made by both sides, we find that there is no dispute as to the fact that the appellant had exported the goods and had utilized the services of the service provider for such exports. It is also not in dispute that appellant is eligible for the refund of the amount of service tax paid by the service providers. The dispute is regarding whether the appellant can get the refund of the amount having filed the refund claim on 31.03.2009 instead of 30.09.2008. We find that the first appellate authority has correctly recorded the fact that it is settled principle as to Rules and Notifications are issued from to time to supplement the provisions of main Act and grant of relief of refund of service tax paid on services used in export of goods has to be sanctioned to the respondent when conditions prescribed in the main Act are fulfilled. We also find strong force in the submissions made by learned Counsel for the respondent that this Bench in the case of Raymond Ltd. (supra) has held as under:-
5. I have carefully considered the submissions made by both the sides. In the present case the refund claim pertains to the quarter October-December, 2008. The appellant have filed the refund claims on 30-7-2009 for the refund under Notification 41/2007-S.T. The said Notification was amended vide Notification No. 17/2009, dated 7-7-2009 so as to allow filing of the refund claim within a period of one year from the date of export of the goods. Inasmuch as the appellant filed the refund claims in July, 2009 for the quarter ending October-December, 2008, the refund claims are within a period of one year from the date of export of the goods. Therefore, the appellant would be eligible for the benefit of refund under the aforesaid Notification subject to satisfaction of other conditions stipulated in the Notification.
5.1 The Honble High Court of Bombay, which is the jurisdictional High Court, in the case of Uttam Steel Ltd. (supra) has held that when procedure and practice are amended they have to be amended retrospectively and the benefit allowed if the procedures are satisfied. This Tribunal in the case of Sandoz Polymers Pvt. Ltd. (supra) has also held the same view. Further, the C.B.E. & C. in Circular dated 12-3-2009 cited supra, have also held that the so long as the refund claims is filed within the extended period of time provided for in the Notification, the assessee would be eligible for the benefit of refund, subject to satisfaction of other conditions stipulated in the Notification.
6. Following the above decisions, I hold that, in the present case also, the appellant is eligible for the benefit of refund claim filed under Notification No. 41/2007 as amended by Notification No. 17/2007 and the time bar aspect is not attracted. However, the appellant has to satisfy that they have fulfilled the other conditions stipulated in the Notification. Therefore, the matter is remanded back to the original adjudicating authority only for satisfying that the appellant has fulfilled the other terms and conditions stipulated in Notification No. 41/2007 and the time-bar issue will have no application.
6.1 The above reproduced ratio of the Tribunal is squarely applicable in this case also and the conclusion reached by the first appellate authority cannot be faulted with.
6.2 On the issue and the reliance placed by learned D.R. on the judgement of the Honble Apex Court in the case of N. Ambalal & Co (supra) we find that the said judgement of the Honble Apex Court was in respect of benefit of Notification and if the conditions laid down in the Notification are not fulfilled. While in the case in hand the main conditions as laid down in the act are fulfilled i.e. there has to be export of goods and the service tax liability has to be paid to the service provider and the same must have been used for the export of the goods which conditions are fulfilled by the respondent.
7. As issue has already been settled in favour of the appellant wherein it has been held that the time limit prescribed in notification issued from time to time is to supplement the provision of mere act and hold that as the appellant has complied with condition of the notification. Therefore, merely on the ground of limitation refund cannot be rejected. In the light of the above cited decisions in the case of Chandrashekhar Exports (Supra) I hold that appellant is entitled for refund claim in question. In these terms impugned orders are set aside and appeals are allowed with consequential relief.
[Dictated and Pronounced in the open Court] (Ashok Jindal) Member (Judicial) Bhanu 2 E/512,513/2011-EX(SM)