Custom, Excise & Service Tax Tribunal
M/S Sopariwala Exports Pvt Ltd vs Cce & St- Vadodara-I on 15 February, 2018
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ~~~~~ Appeal No : ST/682/2010 (Arising out of OIA No. Commr.(A)/337/VDR-I/2010 dated 24.11.2010 passed by Commissioner (Appeals) Central Excise, Service Tax & Customs, Vadodara) M/s Sopariwala Exports Pvt Ltd : Appellant (s) Versus CCE & ST- Vadodara-I : Respondent (s)
Represented by:
For Appellant (s) : Shri S. R.Dixit, Shri B. M. Suthar, Advocate For Respondent (s): Mrs. Nitina Nagori, Authorised Representative CORAM:
Dr. D. M. Misra, Honble Member (Judicial) Mr. Raju, Honble Member (Technical) Date of Hearing/Decision : 15.02.2018 Order No. A/10661 / 2018 Per: Dr. D. M. Misra This is an appeal filed against OIA No. Commr.(A)/337/VDR-I/2010 dated 24.11.2010 passed by Commissioner (Appeals) Central Excise, Service Tax & Customs, Vadodara.
2. Briefly stated the facts of the case are that the appellant had filed refund of service tax paid on various input services used in the export of goods for the quarter July 2008 to Sept. 2008, on 16.03.2009, for an amount of Rs. 45,54,532/-. Show cause notice was issued proposing rejection of the refund claim, which on adjudication, rejected. Aggrieved by the said order, they filed appeal before the Ld. Commissioner (A), who inturn, rejected their appeal. Hence, the present appeal.
3. Ld. Advocate Shri S. R. Dixit for the appellant submits that on exported goods they have paid commission to the overseas commission agent for procuring orders and accordingly service tax was paid on such sales commission on reverse charge mechanism. The said commission was paid after realizing the sales proceed. The goods were exported during the period July 2008 to Sept. 2008, and keeping in mind the stipulated date for filing refund claim, they submitted the refund claim on 16.03.2009. Consequently, on payment of service tax against the said commission on 07.05.2009 the proof thereof had been submitted to the department for sanctioning the refund claim. It is his contention that as per the conditions of the Notification No. 41/2007-ST dated 06.10.2007 they complied with the time limit prescribed under sub-clause (e) of Clause (2) of the said notification. Further, he has submitted that it is a policy of the Govt. not to export of service tax, but, goods and services, therefore, exemption from payment of service tax has been allowed under Notification No. 41/2007-ST dated 06.10.2007, but, the exemption was allowed by way of the refund of the service tax paid in utilizing the services for exported goods and services. Therefore, the findings of the Ld. Commissioner (A) that the demand is barred by limitation is unsustainable in law.
4. Ld. AR for the Revenue reiterated the findings of the Ld. Commissioner (A).
5. Heard both sides and perused the records. We find that there is no dispute of the fact that the goods have been exported by the appellant during the quarter July 2008 to Sept. 2008 by utilizing the services on which service tax was payable for the exported goods. The only issue is that even though the refund claim was filed within 6 months from the stipulated date i.e. from the date of the exported goods, but, it was disallowed on the ground that the payment of service tax on reverse charge mechanism was effected on 07.05.2009. We find force in the contention of the Ld. Advocate for the appellant inasmuch as that Notification No. 41/2007-ST dated 06.10.2007 exempts the taxable services received by the exporter and used for export of the goods from the whole of the service tax leviable thereon under Section 66 and Section 66A of the Finance Act, 1944. In the present case, there is no dispute of the fact that the goods have been exported and sales commission service on which service tax paid had been used in export of the goods. Also, the refund claims have been filed for the quarter July 2008 to Sept. 2008 within 6 months i.e. on 16.03.2009. The only objection of the department is that payment was made to the overseas sales commission agent on 09.05.2009, therefore, the refund is barred by limitation. The relevant clause reads as follows:-
Rule 2 (a).
(b).
(c)..
(d).
(e) the claim for refund shall be filed on a quarterly basis, within six months from the end of the relevant quarter during which the said goods have been exported.
We find that the department has not rejected the refund claim and returned the same to the appellant for deficit of document, namely, proof of payment of service tax, after it was filed on 16.3.2016. In these circumstances, in are opinion, the refund claim cannot be rejected on the ground of time bar, since, they have complied with the condition of filing the refund claim within 6 months from the date of export of goods for the relevant quarter i.e. from July 2008 to Sept . 2008. In the result, the impugned order is set-aside and the appeal is allowed.
(Operative part of the order pronounced in the Court)
(Raju) (D. M. Misra)
Member (Technical) Member (Judicial)
G.Y.
4
Appeal No. ST/682/2010