TMI Blog2013 (5) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... in supersession of the earlier notification no.41/07-ST and in the new notification, the limitation period was one year from the date of let export order and since in terms of the Board’s circular no.354/256/2009-TRU dated 1.1.10, the new notification dated 7.7.2009 is applicable to the exports which had taken place prior to its issuance, the limitation period application in respect of this refund claim would be one year. Thus, refund claim had been filed within time. The impugned order is set aside. Denial of refund of service tax for the period of August, 2008 to October, 2008. – Held that: - In respect of refund claim of ₹ 66,499/- in respect of the service tax on the commission paid to the overseas commission agents, the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation services for ISO certification [taxable under Section 65(105)(zzi] and the services of Commission agents abroad for procuring export orders [(taxable under Section 65(105)(221)]. The refund of service taxable under heading technical testing and analysis service is subject to condition that the exporter furnishes the copy of the written agreement entered into with the buyers of the said goods. In this case, admittedly, such a certificate has not been produced and for this reason, the original adjudicating authority as well as first appellate authority have denied the refund in respect of these services. 1.1 Shri Ravi Chopra, ld. Counsel for the appellant states that the appellant are not contesting the denial of refund in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that delay in payment of service tax was on account of delay in receipt of the export proceeds, as only after the receipt of export proceeds, commission is paid to the overseas commission agents and after that the service tax is paid, that in this case, there is no delay, as on 17.7.2009, the Government had issued another notification no.17/09-ST in supersession of the earlier notification no. 41/07-ST and in the new notification, the limitation period was one year from the date of let export order, instead of six months, that in terms of Boards letter dated 354/256/09-TRU dated 1.1.2010 on the basis of which the Commissioner of Central Excise, Dibrugarh has issued Public Notice No.7/2010 dated 4.3.10, the new notification does not bar it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Union of India reported in 2002 (139) ELT 6 (SC) while interpreting a statute, the court should try to sustain its validity and give such meaning to the provisions which would advance the object sought to be achieved by the enactment, that the provisions of clause 1 (c) requiring the exporter claiming the exemption to produce evidence that the service tax has been paid, and the clause 2 (e) prescribing limitation period of six months for filing the refund are contradictory and in many cases, both the conditions cannot be satisfied, as in case of service of business auxiliary service received from the commissions agent aboard, the payment of service tax gets delayed on account of receipt of payment for the exports for which the period pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e six months would expire on 30.06.2009. However, in this case, the service tax on commission to overseas commission agent had been paid in March, 2009 and refund claim has been filed on 31.08.2009. Since on 7.7.2009 new notification no.17/2009-ST had been issued, in supersession of the earlier notification no.41/07-ST and in the new notification, the limitation period was one year from the date of let export order and since in terms of the Board s circular no.354/256/2009-TRU dated 1.1.10, the new notification dated 7.7.2009 is applicable to the exports which had taken place prior to its issuance, the limitation period application in respect of this refund claim would be one year from the date of let export order and since in this case, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed. 9. As regards the appeal no.ST/3920/12 in respect of refund of service tax of ₹ 85,225/- which is the service tax paid in respect of the payment to the commission agents abroad, the period of export is from April, 2008 to June, 2008. The service tax had been paid in November, 2008 and refund claim had been filed on 2.2.2009. At the time when the refund claim was filed, it is notification no. 41/2007-ST which was in force under which the limitation period was six months from the date of let export order. I find that the in this case also, while the refund claim could have been filed upto December, 2008, the appellant have filed in Feb. 2009 and for which, there is no justification. In this case also, the Apex Court s jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
