TMI Blog2011 (10) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority of the opportunity to verify the correctness of the declaration and satisfy himself that there is no possibility of evasion of duty by misuse of this facility, the requirement of para 3.1 & 3.2 cannot be said to have been satisfied and the rebate would not be admissible. - matter remanded to the original adjudicating authority for de novo adjudication of the matter. - ST/66 of 2008 - ST/593/2011 - Dated:- 5-10-2011 - Mrs. Archana Wadhwa, Shri Rakesh Kumar, Represented By:- Shri B.L. Narasimhan, Advocate for Appellant Shri R.K. Gupta, DR for Respondent Per: Rakesh Kumar: The appellant provide Business Auxiliary Services. According to them, they have applied service tax registration which has since been granted to them by the jurisdictional Superintendent of Central Excise in March, 2007. They provide I.T. enabled services like technical support services, back office services, customer care services, etc. under the category of Business Auxiliary Services to their clients abroad. Since the services had been provided to their clients abroad, no service tax was paid in accordance with the provisions of Rule 4 of the Export of the Service Rules, 2005. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period of dispute, the registration certificate was not there, since the appellant were exporting the services being provided by them and were not liable to pay duty, they were not liable to obtain registration, that for claiming rebate under Rule 5 of the Export of Services Rules, 2005 read with Notification No.12/2005-ST, service tax registration is not required as that there was no provision for obtaining registration in the notification no.12/2005-ST, that the main ground on which the rebate claim has been rejected is that the declarations as required under para 3.1 of the notification had not been filed, that while declarations had not been filed prior to export of the services as, at that stage, it is not possible to anticipate as to which services would be required to be availed, such declarations had been filed subsequently, that the Hon'ble Punjab Haryana High Court in the case of Commissioner of Service Tax Vs. Convergeys India Pvt. Ltd. reported in 2010 (20) STR 166 (P H) has held that when the rebate claims related to the period from 19.04.2005 to 31.05.2005, while the declaration under para 3.1 had been filed on 19.05.2005, the rebate claim cannot be rejected, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the case in this matter, in terms of the provisions of Rule 4 of the Export of Service Tax Rules, 2005, they were not required to pay any duty and, therefore, in terms of the provisions of Section 69 of the Finance Act, 1994 read with Rule 4 of the Service Tax Rules, 1994 they were not required to obtain any registration, as under Section 69 of the Finance Act, 1994 as well as under Rule 4 of the Service Tax Rules, 1994, the requirement of obtaining registration is linked with liability for paying service tax, not with mere providing of taxable services. Thus a person providing taxable services would be liable to obtain service tax registration only if he was liable to pay the service tax. Moreover, we also find that neither in Rule 5 of the Export of Services Rules nor in the Notification No.12/2005-ST issued under this rule, there is any condition that the person claiming rebate must have service tax registration. In view of this, the rebate claim under Rule 5 of the Export of Services Rules or in the Notification No.12/2005-ST cannot be rejected just because the assessee did not have service tax registration which, as discussed above, he would not be required to obtain, if his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export in which the details of the services /service to be exported along with the details of the inputs and input services to be used is required to be given. This declaration is to be made to the jurisdictional Asstt./ Dy. Commissioner who in terms of para 3.2 of the notification, is required to verify the same, if necessary, by calling for any relevant information so as to satisfy himself that there is no likelihood of evasion of duty / service tax. Once the Asstt. Commissioner /Dy. Commissioner is satisfied, he may accept the declaration. 6.3. Para 3.4 of the notification provides that rebate claims must be filed before the Asstt./ Dy. Commissioner along with all the invoices for the inputs or input services, the documentary evidence regarding receipt of payment for the taxable services exported, the evidence of payment of duty on the inputs and input services received and also a declaration that the taxable services have been exported, along with documents supporting such exports. 7. On going through the Notification No.12/2005-ST, we find that though the requirement of filing of declarations prior to export of the services and its verification by the jurisdictional Asstt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods in respect of which I have separately given a declaration under Rule 14 have been imported by me as raw material to be used in the manufacture of .... in my industrial undertaking, viz. (here give full name and address of the undertaking)... and I shall not use them for any other purpose for sale or otherwise dispose them of to any other party for any other purpose, except, having previously paid the difference between the octroi due on such goods at ordinary rates and the octroi paid on concessional rates under Schedule II to the Maharashtra Municipalities (Octroi) Rules, 1968. Date................ Signature of the Importer" The declaration contemplated in Form 14 is to the effect that the goods imported shall not be used for any other purpose for sale or otherwise etc. It can thus be seen that an incentive is sought to be given to such entrepreneurs by such concession if the raw material which is imported is also utilised in the industrial undertaking without selling or disposing of otherwise. That being the object a verification at the relevant time by the octroi authorities becomes, very much necessary before a concession can be given. In the absence of filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure followed is fulfilled, to grant refund of the toll. The application for refund of the toll must be made within fifteen days from the date of payment of the toll. It has to be accompanied by the original receipts. If these procedural requirements are not fulfilled, the Municipality may decline to refund the toll and relegate the claimant to a suit. It would then be open to the party claiming a refund to seek the assistance of the Court, and to prove by evidence which is in law admissible, that the goods transported by him fell within the order issued under Section 157(3) of the Act. The rules framed by the Government relating to the procedure to be followed in giving effect to the exemptions on April 15, 1939, do not purport to bar the jurisdiction of the Civil Court if the procedure is not followed." Relying on these observations, Shri Ganesh, learned Counsel for the petitioner Company contended that in the instant case though the procedural requirement is not fulfilled by filing a declaration in Form 14, still that is not a bar to invoke the jurisdiction of the Civil Court or the High Court by way of a writ and seek a refund. We are unable to agree. In Duggal's case, (196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority is satisfied that the residential occupier has furnished all the information and evidence it requires, it is under no duty to grant a rebate." (emphasis supplied) 7. In Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, Calcutta and Ors. the appellant which was a Public Limited Company, sought exemption under the provisions of the Bengal Finance (Sales Tax) Act, 1941 in respect of certain sales but did not produce before the Officer the declaration forms from the purchaser dealers required to be produced under the proviso to that sub-clause granting exemption. It was contended on behalf of the appellant that proviso to the sub-clause was only directory and the dealer is not precluded where the proviso is not strictly complied with from producing other relevant evidence to prove that the sales were for the purposes mentioned in the said sub-clause. The contention on behalf of the respondent was that the dealer can claim exemption under the sub-clause but he must comply strictly with the conditions under which the exemption can be granted. Rejecting the appellant's contention, this Court held thus : "Section 5(2)(a)(ii) of the Act in effect exempts a sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to the facts of this case. When the amount of rebate is a two step process- first step being filing of declaration and its verification so as to rule out any possibility of evasion of duty by misuse of this facility and second stage being filing of the rebate claim, if an assessee does not fulfill the requirement of first step and does not file necessary declaration at all, prior to the export of taxable services, and as such, there has been no opportunity for the department to verify his declaration, the assessee cannot claim rebate by asking the officer to verify his records presented along with rebate claims. In the case of CST Vs. Convergys India Pvt. Ltd. decided by the Hon'ble Punjab Haryana High Court cited by the appellant, there was some delay in filing of the declaration required under para 3.1, as while the rebate claim pertained to the period from 19.09.2005 to 31.05.2005, the declaration had been filed on 19.05.2005. This judgement, in our view, would not be applicable in a case where the declaration had not been filed at all. This judgement would help only in those cases where the declarations regarding the input services and inputs required to be used h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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