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J.P. Morgan Services India Private Ltd. Versus Commissioner of Central Excise (Service Tax) , Mumbai

2016 (2) TMI 446 - CESTAT MUMBAI

Refund - tax paid on input services utilized for export services - failure to submit the relevant documents and follow the procedures as prescribed - Rule of the Export of Service Rules, 2005 - Held that:- A plain reading of the notification indicates that taxable services has to be exported in terms of Rule 3 and payment of export of such taxable services has to be received in India in convertible foreign exchange and the duty/tax has been paid on input or input services. All these contentions .....

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peal 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 c .....

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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 by such an order the appeal is before the Tribunal. 3. Learned Advocate draws our attention to the facts of the case, show cause notice issued and the orders passed by the lower authorities. It is his submission that the rejection of refund claim is incorrect and there is no dispute that they had exported the .....

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nefit of export rebate should not be denied even if the same are exported prior to the rules those are brought into the statute. 4. Learned departmental representative on the other hand would draw our attention to the provisions of Export of Service Rules, 2005, he would submit that the said rules were brought into statute effective from 15-03-2005. He would submit that the refund claims for the rebate on tax paid on input services prior to 15.04.2005 are not governed by these Exports of Service .....

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4 to April, 2005. It is undisputed that the appellant had exported the services and are eligible to avail the CENVAT credit of service tax paid on input services. There only bone of contention between the appellant and the department is regarding the applicability of the Rule 5 of the said rules for the refund of the amount of CENVAT credit on the Exported Services prior to 15.04.2005. 6.1. On consideration of submissions made by both sides, we find that both the lower authorities have misdirect .....

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gible 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 ex .....

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xported, the Central Government may, by notification, grant rebate of service tax paid on such taxable service or service tax or duty paid on input services or inputs, as the case may be, used in providing such taxable service and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification. It can be seen from the above reproduced Rule that the said Rule talks about granting of rebate of service tax paid and do .....

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services (herein after referred to as input services ), used in providing taxable service exported in terms of rule 3 of the said rules, to any country other than Nepal and Bhutan, subject to the conditions, limitations and procedures specified hereinafter, - 2. Conditions and limitations :- (a) that the taxable service has been exported in terms of rule 3 of the said rules and payment for export of such taxable service has been received in India in convertible foreign exchange; (b) that the dut .....

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ed, have not been paid; or (ii) the taxable service, rebate for which has been claimed, has not 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 taxab .....

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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 be, shall verify the correctness of the declaration filed prior to such export of taxable service, if necessary, by calling for any relevant information or samples of inputs and if after such verification, the Assistant Commissioner of Central Exci .....

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ed by invoices issued under the Central Excise Rules, 2002; (ii) receive the input services required for use in providing taxable service to be exported and an invoice, a bill or, as the case may be, a challan issued under the provisions of Service Tax Rules, 1994. 3.4 Presentation of claim for rebate. - (a) (i) claim of rebate of the duty paid on the inputs or the service tax and cess paid on input services shall be filed with the jurisdictional Assistant Commissioner of Central Excise or Deput .....

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services used for providing taxable service exported, rebate of which is claimed; c. a declaration that such taxable service, has been exported in terms of rule 3 of the said rules, along with documents evidencing such export. (b) The jurisdictional Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, having regard to the declaration, if satisfied that the claim is in order, shall sanction the rebate either in whole or in part. Explanation 1.- se .....

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l 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 Co .....

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notification also does not indicate that an assessee has to export the services on or after 19.04.2005 to avail benefit of rebate of CENVAT credit. A plain reading of the notification indicates that taxable services has to be exported in terms of Rule 3 and payment of export of such taxable services has to be received in India in convertible foreign exchange and the duty/tax has been paid on input or input services. All these contentions are satisfied in this appeal filed by the appellant. (b) .....

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other requirements of the rules and notification issued there under, cannot be turned down on a ground which is not a condition or requirement of the rule or notification. A statute cannot be treated retrospective merely because it relates to the past action. A stature which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transaction already past alone is called a retrospective legisl .....

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Supreme Court decision in the case of Gouche Pierre Andre v. Superintendent, Central Jail, Tihar, 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 co .....

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