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2015 (3) TMI 1059 - CESTAT BANGALORE

2015 (3) TMI 1059 - CESTAT BANGALORE - 2015 (39) S.T.R. 824 (Tri. - Bang.) - Denial of refund claim - whether service tax was paid on processing of cashew nuts wrongly - refund claim was not registered but a letter was written to them on 4-10-2007 informing them that the refund claim was not filed in proper format and all supporting documents required were not submitted - exemption Notification No. 13/2003-S.T., dated 20-6-2003 - Bar of limitation - Held that:- Conversion of cashew nuts to cashe .....

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inition.

As regards the second claim, it is very clear from the rules for interpretation that classification should not be undertaken on the basis of title but has to be done based on the description for chapter heading/sub-heading. Cashew nuts is a separate heading under Chapter 0801 and below that cashew nuts in shell are covered by 0801 3100 and shelled cashew nuts are covered by 0801 32. This would show that cashew kernels and cashew nuts are treated differently even in the tarif .....

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of cashew kernels, gherkins, coffee beans, etc. On the services received from commission agents, they had discharged service tax as receiver of service and since they could not utilize the service tax, they filed refund claim on 28-9-2007. The refund claim was not registered but a letter was written to them on 4-10-2007 informing them that the refund claim was not filed in proper format and all supporting documents required were not submitted. Thereafter the appellant filed a reply making good .....

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on other items, the same was rejected as time-barred taking the date of filing the refund claim as 5-1-2008. 3. The learned CA on behalf of the appellant submits that the original date of filing the refund claim should have been taken into consideration for the purpose of limitation and therefore the rejection of the part of the refund claim on the ground of limitation may be set aside. The learned CA placed reliance on the decision in the case of Commissioner of Service Tax, Mumbai v. Rel .....

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ating to export of cashew kernels, the learned CA submitted that agricultural produce has been defined under the explanation to the notification. She submits that according to this definition, cashew kernels have to be considered as agricultural produce. She also relies upon the title of the Chapter 8 of Central Excise Tariff which reads edible fruit and nuts . It is her submission that since the heading covers fruit and nuts, cashew kernels also covered under this chapter, cashew kernels have t .....

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