Custom, Excise & Service Tax Tribunal
M/S.Soccer International Pvt. Ltd vs Cce, Ludhiana (Punjab) on 27 February, 2013
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:27/02/2013
For approval and signature:
Honble Shri Rakesh Kumar, Member (Technical)
1. Whether Press Reporters may be allowed to see the order for
Publication under Rule 27 of the CESTAT (Procedure) Rules, 1982.
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?
4. Whether Order is to be circulated to the Departmental
authorities?
In Appeal No.ST/3644, 3920 and 3651/2012-SM
(Arising out of Order-in-Appeal No.328/ST/LDH/12 dated 31.08.2012 in Appeal No.ST/3644 of 2012, Order-in-Appeal No.180/ST/Appl/CHD-II/2012 dated 10.07.2012 in ST Appeal No.3920 of 2012 and Order-in-Appeal No.186/ST/LDH/12 dated 16.08.2012 passed by the Commissioner of Central Excise (Appeals), Chandigarh).
M/s.Soccer International Pvt. Ltd. Appellant
Vs.
CCE, Ludhiana (Punjab) Respondent
Appearance:
Rep. by Shri Ravi Chopra, Advocate for the appellant. Rep. by Shri R.K. Mathur, Advocate for the respondent. Coram: Honble Shri Rakesh Kumar, Member (Technical) Final Order Nos.56012-56014/2013 dated 08.03.2013 Per Rakesh Kumar:
The appellant are manufacturers of sports goods which they were exporting. Notification No.41/07-ST dated 6.10.2007 provided for refund of service tax on certain services, as specified in the schedule to this notification, which had been received by the assesssee and used for export of the goods. The refund of service tax on the services received for export of the goods is subject to certain conditions mentioned in the notification. Some are general conditions and some are service specific conditions. In this case, the appellant were denied the refund in respect of the services of Technical Inspection & Certification services for ISO certification [taxable under Section 65(105)(zzi] and the services of Commission agents abroad for procuring export orders [(taxable under Section 65(105)(221)]. The refund of service taxable under heading technical testing and analysis service is subject to condition that the exporter furnishes the copy of the written agreement entered into with the buyers of the said goods. In this case, admittedly, such a certificate has not been produced and for this reason, the original adjudicating authority as well as first appellate authority have denied the refund in respect of these services.
1.1 Shri Ravi Chopra, ld. Counsel for the appellant states that the appellant are not contesting the denial of refund in respect of Technical Inspection and Certification services, as the appellant have not been able to produce the written agreement with the buyers requiring inspection and certification of the goods exported. The dispute in these appeals is in respect of refund of business auxiliary services received from overseas commission agents by the appellant for procuring exports orders. In respect of this service, refund has been denied under notification No.41/07-ST on the ground that while in terms of para 2 (e) of the notification, the refund claim is to be filed within the six months from the end of the relevant quarter during which the said goods have been exported and that the goods will be deemed to have been exported on the date on which the proper officer makes an order permitting clearance and loading of the said goods for exportation under Section 51 of the Customs Act, 1962 (52 of 1962) in these cases, the refund claims have been filed after expiry of the limitation period of six months.
2. Heard both the sides.
3. Shri Ravi Chopra, ld. Counsel for the appellant pleaded that sofar as the appeal no.ST/3651 of 2012 in respect of refund of Rs.1,87,441/- as the service tax paid on the commission paid to the overseas commission agent is concerned, the refund claim pertains to the quarter from October, 08 to December, 08 during which the goods had been exported, that while the service tax under reference had been paid in March, 2009, the refund claim has been filed on 31.8.2009, that delay in payment of service tax was on account of delay in receipt of the export proceeds, as only after the receipt of export proceeds, commission is paid to the overseas commission agents and after that the service tax is paid, that in this case, there is no delay, as on 17.7.2009, the Government had issued another notification no.17/09-ST in supersession of the earlier notification no.41/07-ST and in the new notification, the limitation period was one year from the date of let export order, instead of six months, that in terms of Boards letter dated 354/256/09-TRU dated 1.1.2010 on the basis of which the Commissioner of Central Excise, Dibrugarh has issued Public Notice No.7/2010 dated 4.3.10, the new notification does not bar its applicability to exports that have taken place prior to its issuance, that in view of this, in respect of the goods exported in this case, it is the limitation period of one year from the date of let export order, as prescribed under notification no.17/09-ST dated 7.7.2009, which would be applicable, not the period of six months as prescribed in the earlier notification no.41/07-ST, that in this regard, he relies upon the Tribunals judgement in the case of Adani Enterprises Ltd. Vs. CCE reported in 2012-TIOL-1185-CESTAT-AHM, wherein the Tribunal held that when the refund claim was filed after 7.7.2009 for export prior to this date, the limitation period of one year prescribed under the new notification no.17/09-ST dated 7.7.2009 would be applicable, as this notification does not bar its applicability to the exports that have taken place prior to 7.7.2009, that in view of this, the refund claim in respect of which appeal no.ST/3651 of 2012 has been filed is not time barred, that as regards appeal no.ST/3920 of 2012 and ST/3644/2012, in these cases, the period during which the goods have been exported were April, 08 to June, 08 and August, 2008 to October, 08 respectively and the refund claims had been filed on 2.2.2009 and 11.12.2009 respectively, that the delay in filing of the refund claim was only on account of delay in payment of service tax to the overseas commission agent which happened due to delay in receipt of payment for the export, that as held by the Apex Court in the case of British Airways Plc Vs. Union of India reported in 2002 (139) ELT 6 (SC) while interpreting a statute, the court should try to sustain its validity and give such meaning to the provisions which would advance the object sought to be achieved by the enactment, that the provisions of clause 1 (c) requiring the exporter claiming the exemption to produce evidence that the service tax has been paid, and the clause 2 (e) prescribing limitation period of six months for filing the refund are contradictory and in many cases, both the conditions cannot be satisfied, as in case of service of business auxiliary service received from the commissions agent aboard, the payment of service tax gets delayed on account of receipt of payment for the exports for which the period prescribed by Reserve Bank of India is one year and that in view of this, in these two cases, the impugned order disallowing the refund claim is not correct.
5. Shri R.K. Mathur, learned Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and emphasized that there is no contradiction between the provisions of para 1(c ) and para 2 (e) of the notification, that sofar as the appeal no.ST/3920 of 2012 is concerned, the date on which the refund claim has been filed i.e. 12.2.2009, the limitation period applicable was six months from the date of let export order and just because there was delay on the part of the appellant in payment of service tax, the claim cannot be treated as having been filed in time and the limitation cannot be relaxed, that as regards the third refund claim covered by appeal no.ST/3644/2012, the delay is even beyond one year and, therefore, even in terms of limitation period prescribes under notification no.17/09-ST dated 7.7.2009, the clause is time barred and that in this case also while the service tax had been paid on June, 2009 the refund claim had been filed after about six months in December, 2009 and as such, there is no explanation for this delay.
6. I have considered the submissions from both the sides and perused the records.
7. Sofar as Appeal no.ST/3651/2012 is concerned, the period during which the goods had been exported is October, 2008 to December, 2008 and accordingly, the six months would expire on 30.06.2009. However, in this case, the service tax on commission to overseas commission agent had been paid in March, 2009 and refund claim has been filed on 31.08.2009. Since on 7.7.2009 new notification no.17/2009-ST had been issued, in supersession of the earlier notification no.41/07-ST and in the new notification, the limitation period was one year from the date of let export order and since in terms of the Boards circular no.354/256/2009-TRU dated 1.1.10, the new notification dated 7.7.2009 is applicable to the exports which had taken place prior to its issuance, the limitation period application in respect of this refund claim would be one year from the date of let export order and since in this case, refund claim had been filed on 31.8.2009 while the same could be filed upto December, 2009, this refund claim has to be treated as within time in view of the Boards Circular dated 1.1.2010. In view of this, the impugned order disallowing the refund claim of Rs.1,83,744/- in respect of business auxiliary service received from the overseas commission agents is not sustainable and the same is set aside. The appeal is partly allowed.
8. Coming to the appeal no.ST/3644/2012 in respect of refund claim of Rs.66,499/- in respect of the service tax on the commission paid to the overseas commission agents, the period of export is from August, 2008 to October, 2008. In this case even if the limitation period of one year under the new notification no.17/09-ST dated 7.07.2009 is applied, the claim is time barred as the refund claim has been filed on 11.12.2009. It is also seen that while the service tax had been reversed paid in June, 2009 and it was possible for the appellant to have filed refund claim at least within the period of one year i.e. the limitation period prescribed under the new notification no.17/09, the refund claim was filed on 11.12.2009, and as such there is no justification for delay. In the circumstances of the case, the Apex Courts judgement in case of British Airways Plc (supra) cited by the learned counsel for the appellant is not applicable. Therefore, this refund claim has been correctly rejected as time barred and as such, Appeal No.ST/3644/2012 is dismissed.
9. As regards the appeal no.ST/3920/12 in respect of refund of service tax of Rs.85,225/- which is the service tax paid in respect of the payment to the commission agents abroad, the period of export is from April, 2008 to June, 2008. The service tax had been paid in November, 2008 and refund claim had been filed on 2.2.2009. At the time when the refund claim was filed, it is notification no.41/2007-ST which was in force under which the limitation period was six months from the date of let export order. I find that the in this case also, while the refund claim could have been filed upto December, 2008, the appellant have filed in Feb. 2009 and for which, there is no justification. In this case also, the Apex Courts judgement in case of British Airways Plc (supra) is not applicable. As such, the refund claim, in this case, is time barred. Therefore, there is no infirmity in the impugned order rejecting this claim as time barred. Thus, appeal is also dismissed.
(Rakesh Kumar) Member (Technical) Ckp.
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