TMI Blog2016 (2) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal is directed against Order-in-Appeal No. PK/R-3/2008 dated 12/1/2008. 2. The relevant facts that arise for consideration are appellant had filed a refund claim on 12.01.2006 under rule 5 of the Export of Service Rules, 2005 (herein after preferred to as rules) being tax paid on input services utilized for export services during the period September, 2004 to June 2005. The adjudicating authority after issuing the show cause notice, and after following due process of law, rejected the refund claim on the ground that they did not submit the relevant documents and the procedures as envisaged in notification 12/2005 dated 19.04.2005 are not applicable for export made prior to that date. Aggrieved by such an order, an appeal was preferred to the first appellate authority. The first appellate authority also concurred with the views of the lower authorities and concluded that for the period prior to 19.04.2005, notification no. 12/2005 will not apply and the refund claim for that period is accordingly rejected while for the period post 19.04.2005, he has remanded the matter back to the adjudicating authority to reconsider the issue after scrutinizing the documents. Aggrieved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2. The provisions of Export of Service Rules 2005 was brought into statute under notification no. 9/2005-ST dated 03-02-2005 and rebate of the services tax paid under Rule 5 of the said Rules was brought into effect in statute from 19.04.2005. Appellant had filed a refund claim under the said Rule 5 of the Export of Service Rules 2005, on a contention period prior to 19.04.2005, they have exported the services hence eligible to claim to the service tax paid on the input services used for the export of services. Both the lower authorities have held that since notification no. 12/2005 dated 19.04.2005, permits rebate of the service tax paid in the respect of export of output services is effective from 19.04.2005, any export made after 19.04.2005 are only eligible for the refund in the said Rule 5, we are afraid that such an interpretation would defeat the entire wisdom of the government of India in making the export of services competitive in the international market. The view and the findings recorded by both the lower authorities are flawed for more than one reason. (a) Firstly, we find that the said Rule 5 though brought into statute in Export of Service Rules 2005 from 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been exported; or (iii) CENVAT credit has been availed on inputs and input services on which rebate has been claimed, the rebate paid, if any, shall be recoverable with interest as per the provisions of section 73 and section 75 of the Finance Act, 1994 (32 of 1994) as if no service tax and cess have been paid on such taxable service. 3. Procedure :- 3.1. Filing of declaration. - The provider of taxable service to be exported shall, prior to date of export of taxable service, file a declaration with the jurisdictional Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, describing the taxable service intended to be exported with, - (a) description, quantity, value, rate of duty and the amount of duty payable on inputs actually required to be used in providing taxable service to be exported; (b) description, value and the amount of service tax and cess payable on input services actually required to be used in providing taxable service to be exported. 3.2 Verification of declaration. - The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax leviable under section 66 of the Finance Act, 1994; and (b) education cess on taxable service levied under section 91 read with section 95 of the Finance (No. 2) Act, 2004 (23 of 2004). Explanation 2. duty for the purposes of this notification means, duties of excise leviable under the following enactments, namely :- (a) the Central Excise Act, 1944 (1 of 1944); (b) the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); (c) the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978); (d) National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001), as amended by section 169 of the Finance Act, 2003 (32 of 2003), section 3 of the Finance Act, 2004 (13 of 2004) and further amended by clause 123 of the Finance Bill, 2005, which clause has the force of law by virtue of the declaration made under the Provisional Collection of Taxes Act, 1931 (16 of 1931); (e) special excise duty collected under a Finance Act; (f) additional duty of excise as levied under section 157 of the Finance Act, 2003 (32 of 2003); (g) Education Cess on exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... New Delhi, AIR 1975 SC 164=(1975) 1 SCC 192 wherein Para 2 the Supreme Court held that benefit to set of preconviction detention period against the term of imprisonment conferred by Section 428 of the Criminal Procedure Code, 1974 where an accused person, has, on conviction been sentenced to imprisonment for a term is also available where the sentence was imposed before the commencement for the code to reduce the unserved portion of the sentence and that in so construing the section it was not given any retrospective effect for it did not affect the sentence already undergone but affected only that part of the sentence which remained to be served in future. The above reproduced ratio would squarely cover, the matter in the case in hand. The revenue was aggrieved by such a view expressed by the bench and preferred an appeal before Honble High Court of Bombay, their Lordships, vide their judgment and order dated 10th February, 2011 (as reported at 2011(22) STR 609) disposed of the appeal by recording as under. 9. The above finding of the CESTAT cannot be faulted because substituted Rule 5 of the Cenvat Credit Rules, 2004 does not make any distinction between exports mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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