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2021 (11) TMI 71 - AT - Service Tax100% EOU - refund of service tax - Clearing and Forwarding Agency Service - Port Service - Customs House Agent Service - claim filed within a period of one year from the date of export or not - applicability of N/N. 41/2012-S.T. dated 29.06.2012 - Scope of 'beyond the place of removal' - HELD THAT:- In Notification No. 41/2012 which was issued on 29.06.2012, the word used was ‘beyond the place of removal’. When the definition of ‘place of removal’ as given in the Central Excise Act, 1944 is applied, the place where the goods are sold becomes the place of removal. The Department was of the view that only when the goods are loaded into the vessel for export, the transfer of property in goods takes place. So, the place where the sale takes place being the port, the place of removal is the port. That as per the pre-amended Notification No. 41/2012, the services used ‘beyond the place of removal’ are only eligible for refund. This anomaly was corrected by issuing the Notification No. 01/2016 dated 03.02.2016 by amending Notification No. 41/2012.The amendment was made to have retrospective application with effect from 01.07.2012. It is clear that there was a mistake in Notification No. 41/2012, which stated that the taxable services that have been used ‘beyond the place of removal’ for the export of goods would be eligible for refund. When the definition of input service includes services which have been used ‘up to the place of removal’, the same ought to have been incorporated in Notification No. 41/2012. After realizing the mistake and the ineligibility of credit / refund/ rebate on input services used for the export of goods, the amendment has been introduced by the Government by the Finance Act, 2016. It is not necessary that there should be an order of rejection of refund. If a litigation is at the stage of Show Cause Notice and there is a proposal for rejection, the Show Cause Notice has to be adjudicated after considering the amendment brought forth vide the Finance Act, 2016. It cannot be then said that the Adjudicating Authority has to first reject the claim and thereafter assessee has to file a fresh claim under the amended Notification of 2016 - The intention of the Government is very much clear from the Notification which is to grant refund retrospectively with effect from 01.07.2012. This cannot be frustrated by clinging on to technical formalities. In the present case, the appellant had requested to return the refund claims only to see if other alternate remedies were available to them. Meanwhile, the Notification corrected the situation. Therefore, the appellant has filed the refund claims pursuant to the amended Notification. The rejection of refund claim then, on the ground of limitation, denying the benefit intended by the amendment is not legal and proper - the rejection of refund cannot sustain and requires to be set aside - Appeal allowed - decided in favor of appellant.
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