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2019 (3) TMI 877 - AT - Service TaxSEZ Unit - refund of service tax - credit was distributed by the ISD - Rule 7 of the Cenvat Credit Rules - clause (a) and (e) of para 3 (III) of Notification 12/2013-ST - time limitation - Held that:- Clause (e) of para 3(III) of Notification No.12/2013 provides for discretion to the adjudicating authority to permit filing of a refund claim even beyond one year from the end of the month in which actual payment of service tax was made by the SEZ unit to the registered service provider. This discretion has been exercised by the adjudicating authority while granting refund in respect of cases covered under Table-II of Form A-4 to the refund application. The exercise of discretion is evident as the adjudicating authority has in his order taken cognizance of disclosure in the covering letter filed along with the refund claim, wherein in, it has been stated that in respect of cases where refund was being claimed after distribution of credit by ISD there were some instances where on the date of filing of the refund claim the payment date to the service provider by the ISD office for common services was beyond one year from the date of such payment. The adjudicating authority had processed the refund claim without verifying the compliance with the condition regarding time limitation prescribed in clause (e) of Para 3(III), even then there is no warrant to remand the matter back to the adjudicating authority as has been contended by the Revenue, inasmuch as, even if the adjudicating authority had not exercised the jurisdiction vested with it, we can do so and we exercise the said discretion and condone the delay in filing the claim for refund, as prescribed in clause (e) of para 3 (III) of Notification No.12/2013 In case of ISD invoices for all the purposes be it cenvat or refund, the ISD invoice is deemed to be tax paying document, hence the date of that ISD invoice has to be taken even for computing the one year stipulated in the notification. Therefore as long as the SEZ unit files the claim for refund within one year from the ISD unit distributing credit to it, it is reasonable to condone the delay, if any, in filing the claim for refund from the time period of one year from the end of the month, in which tax payment is made to the service provider as envisaged in clause (e) of para 3(III). Clause (a) of para 3(III) of Notification No.12/2013 - Held that:- It is not in dispute that the services covered by Table-II of Form A-4 were common to the authorised operations in the SEZ and the operations in the DTA. Such common credit has been distributed on the basis of the turnover of the SEZ unit and that of the DTA unit as envisaged in clause (a) of para 3(III) - the adjudicating authority has acted completely in accordance with law while processing the claim for refund in the manner prescribed in the refund Notification. Appeal dismissed - decided against Revenue.
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