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2022 (5) TMI 143 - HC - Service TaxRefund claim - time limitation - claim was delayed by a period of 4 days - Constitutional Validity of clause 3(g) of Notification No. 41/2012-ST dated 29.6.2012 along with Explanation thereto - ultra-vires Section 83 of the Finance Act read with Section 11B of the Excise Act or not - period of limitation for the purpose of filing refund application under the Finance Act in case of export of goods through air or sea - HELD THAT:- The refund application is to be filed within one year from the ‘relevant date’ and the expression ‘relevant date’ in the context of export by sea or air is defined as the date on which the ship or the aircraft in which the goods are loaded leaves India. It is to be further noted that as per clause (A) of the Explanation, refund includes rebate. Explanation to clause 3(g) of the Notification states that the date of export shall be the date on which the proper officer of the Customs makes an order permitting the clearance and loading of the goods for exportation under Section 51 of the Customs Act. Hence, as per the Notification, the refund claim is to be filed within one year from passing of the order permitting the clearance and loading of the goods for exportation under Section 51 of the Customs Act. Such prescription of limitation is in direct conflict with the statutory provision, i.e. Section 11B of the Excise Act, which provides for limitation to commence from the date when the ship leaves India. Since the acknowledgment of the refund application was given on 18.2.2014, i.e. within one year from the date when the ship left India, i.e. on 20.2.2013, such refund application being within the period of limitation as stipulated under Section 11B of the Excise Act could not have been rejected as being barred by limitation. In any case, once it is held that the impugned clause 3(g) and the Explanation thereto of the Notification No.41/2012-ST dated 29.6.2012 is ultra vires Section 83 of the Finance Act read with Section 11B of the Excise Act, the impugned orders rejecting the refund on the ground of limitation cannot be sustained. The impugned clause 3(g) of the Notification No.41/2012-ST dated 29.6.2012 along with the Explanation is declared as being ultra vires Section 83 of the Finance Act read with Section 11B of the Excise Act - Application disposed off.
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