Custom, Excise & Service Tax Tribunal
Repro India Ltd vs C.C.E. & S.Tax, Surat I on 22 August, 2017
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, 2nd Floor, Bahumali Bhavan, Asarwa, Ahmedabad Central Excise Appeal No.11670 to 11672 of 2014 -SM Arising out of the Order-in-Appeal No.EXCUS-001-APP-511 to 513/13-14 (Final Order) dated 7.11.2013 passed by the Commissioner (Appeals), Central Excise, Customs & Service Tax, Surat I Repro India Ltd .. Appellants Vs. C.C.E. & S.Tax, Surat I .. Respondent
Appearance:
Present Shri Jigar Shah, Advocate for the Appellants Present Dr. J. Nagori, A.R. for the Respondent-Revenue Coram: Honble Dr. D.M. Misra, Member (Judicial) Date of hearing/decision:22.8.2017 Final Order No.A/11952 - 11954/2017 Per Dr. D.M. Misra:
Heard both sides. Three refund claims have been filed by the appellants: (i) Rs.13,38,000/- on 28.6.2010 for the period March 2009 to March 2010 (Appeal No.ST/11670/2014); (ii) Rs.44,827/- on 23.3.2012 for the period January to March 2011 (Appeal No.ST/11671/2014); and Rs.1,58,414/- on 23.3.2012 for the period January 2010 to February 2011. The refund claims were rejected mainly on the ground that these claims were filed beyond the time limit prescribed for the refund prescribed under Notification No.9/2009-ST dated 3.3.2009 as amended by Notification No.15/2009-ST dated 20.5.2009. While rejecting the refund as barred by limitation the authorities below had observed that the service tax amounts have been paid beyond the stipulated period of six months against the services received, on which refund had been claimed under the said Notification. The contention of the ld. Advocate for the appellant is that the authorities below had misinterpreted the condition of Clause 2(f) of the Notification No.9/2009-ST as amended; the time limit of six months for claiming refund should be computed from the date of payment of service tax for the services received, which they have paid; the said condition cannot be read to mean that the appellants are required to discharge the service tax within six months from the date of receipt of the services. Further, he has submitted that in relation to the refund claim for Rs.13,38,000/-, the refund was initially filed on 28.6.2010 and later filed again with the revised format on 4.11.2010, hence, the refund claim cannot be considered as barred by limitation. Besides, major portion of the refund claim was rejected on the ground of limitation and balance amount was disallowed erroneously observing that the same is not admissible on merit.
2. The ld. A.R. for the Revenue on the other hand fairly accepts that the date of payment of service tax be basis for computation of the time limit prescribed under the said Notifications. However, he submits that it is not clear from the record as to when the service tax was paid and whether the refund claims were filed thereafter. He submits that it is necessary for scrutiny of the said facts to consider the limitation aspect as well as on merit.
3. I find that condition prescribed at Clause 2(f) of the Notification No.09/2009 ST dt.03.3.2009 reads as follows:
the claim for refund shall be filed, within six months or such extended period as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall permit, from the date of actual payment of service tax by such developer or to service provider.
4. A simple reading of the said condition, it is clear that refund claim is required to be filed within six moths from the date of payment of service tax to the service provider and not from the date of receipt of services. Thus, I find force in the contention of the ld. Advocate for the appellants. Otherwise also, in the event of delay in filing the claim, the power to condone the delay is vested with the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise depending upon the circumstances of each case. Accordingly, the matter is remanded to the adjudicating authority for the purpose of verifying the date of payment of service tax to the service provider so as to compute the period of limitation and also to consider the refunds on merit as proposed in the notice. The Appeals are allowed by way of remand.
(Dr. D.M. Misra) Member (Judicial scd/ E/11670 to 11672/2014-SM 4