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2015 (11) TMI 527 - CESTAT MUMBAI

2015 (11) TMI 527 - CESTAT MUMBAI - TMI - Denial of refund claim - services used in the export goods under Notification No.41/2007-ST and Notification No.17/2009-ST - Commission paid to overseas export commission agent and Banking & Financial services - Bar of limitation - Held that:- As regard nexus of commission service with the export I am of the view that the service is of overseas commission agent who provides services exclusively related to export of goods, therefore even by stretch of ima .....

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that the application was filed before 07/07/2009 which is factually incorrect and secondly when refund claim was admittedly filed on 31/03/2010, it was wrong on the part of Commissioner to hold that the Appellants have filed refund claim under the previous notification no.41/2007-ST and for this reason benefit of public notice No.07/2010 dated 04/03/2010 was not extended to the Appellant. In view of my above observations, I am of the view that the Appellants are legally entitled for the refund a .....

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Asstt. Commissioner (A.R.) ORDER Per : Ramesh Nair These two appeals are directed against the Order-in-Appeal No. 173/174 dated 21/5/2013 passed by the Commissioner (Appeals-IV) of Central Excise & Service Tax, Mumbai I, wherein the Ld. Commissioner rejected the Appeals of the Appellant involving refund of service tax paid on the services used in the export goods under Notification No.41/2007-ST and Notification No.17/2009-ST. 2. The Appellants refunds in respect of services namely Commissio .....

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pearing on behalf of the Appellant submit that as regard availment of drawback, this condition was omitted in the notification No.41/2007-ST vide amendment notification No.33/2008-ST dated 07.12.2008 therefore the refund for the period on or after 07.12.2008 is admissible. This submission was categorically made before the Commissioner (Appeals) but he has neither considered nor given any finding on this aspect. He submits that after 07.12.2008, since no condition related to drawback exists, the .....

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on or before 30th June, 2009, whereas the claim was filed on 31.03.2009, hence it is well within the stipulated period of six months. Regarding nexus of services with the export, he submits that the Appellants submit the Annexure C with this appeal wherein the nexus has clearly been established. In the second appeal related to refund of ₹ 16,17,016/-, as regard reasons of rejection on the ground of drawback availment and nexus, he adapted the submission as made above. Regarding time bar, h .....

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sent refund claim of ₹ 16,17,016/- was filed on 31.03.2010, hence the contention of the Ld. Commissioner that the refund was filed before 07.07.2009 is factually incorrect. Moreover, at the time of filing refund on 31.03.2010, notification no. 41/2007-ST was not in existence, hence question of filing refund claim under the said notification does not arise. Therefore it is not correct to say that the refund claim in the present appeal was filed under previous notification. 4. On other hand, .....

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₹ 16,17,016/-. Appeals in respect of refunds including the above two amounts were rejected by the Ld. Commissioner appeals on the following grounds: (i) The appellants have availed drawback by which contravened the condition of the notification no. 41/2007-ST. (ii) The refund claim is time barred as the same was filed by the appellants beyond the stipulated time of six months. (iii) The nexus in respect of commission with exports service could not be established. From the records and subm .....

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drawback was not existing. As regard time bar I observed that first claim of ₹ 9,81,612/- is for the quarter ending December, 2008 and refund application could have been filed by 30th June, 2009 whereas the appellants refund claim was filed on 31/03/2009 which is well within the time period as stipulated in the Notification No.41/2007-ST. Therefore Ld. Commissioner wrongly rejected the claim on time bar. As regard nexus of commission service with the export I am of the view that the servi .....

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