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2016 (4) TMI 25 - CESTAT NEW DELHI

2016 (4) TMI 25 - CESTAT NEW DELHI - TMI - Refund of Service tax - paid on specified services in terms of the provisions of Notification No.41/2007-ST 6.10.2007 - Non-fulfillment of condition contained in proviso (e) to para (1) of Notification that the goods exported without availing drawback of service tax paid on the specified services under the Customs, Central Excise and Service Tax Drawback Rules, 1995- Held that:- the appellant's contention that deletion of the condition (e) with effect f .....

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ification subsequently cannot be considered to be clarificatory in nature so as to hold the same to be effective with retrospective effect. Deletion of the condition of the Notification is only reflective upon the legislative intent and would be effective only from the date of its actual deletion. Therefore, refund cannot be allowed. - Decided against the assessee - Service Tax Appeal Nos.844, 861, 862, 865, 866, 902, 933 of 2009 - Final Order No. .....

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s and Smt. Suchitra Sharma, ld. A.R. appearing for the Revenue we find that the appellants have exported goods under claim of drawback in terms of the provisions of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. The dispute in the present appeals relates to refunds of service tax paid on the specified services, in terms of the provisions of Notification No.41/2007-ST 6.10.2007. The said Notification allows exemption from service tax by way of refund of service tax paid on v .....

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1995. The refund claims filed by the appellants stand rejected on the ground of non-fulfillment of the said condition inasmuch as the appellants have undertaken their export under claim of drawback. This fact does not stand disputed by the ld. Consultant appearing for the appellants. However, his contention is that as per the clarification given by the Director of Drawback, the rate of drawback stands finalized by the Government, by including the input services which stand used for the manufact .....

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the case of Bhadresh Trading Corporation vs. C.S.T., Mumbai 2016 (41) STR 85 (Tri-Mumbai) wherein the benefit of the Notification No.41/2007-ST was allowed by observing that drawback of service tax paid on specified services does not stand claimed by the assessee. He also submits that subsequently, with effect from 7.12.2008 , the said condition No.(e) of the Notification was deleted and submits that said deletion of the condition should be treated as retrospective. Accordingly, he prays for set .....

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ue of the specified services also, thus, leading to inevitable conclusion to the effect that the services in question have already been claimed as drawback. She submits that clarificatory given by the Director of Drawback is in respect of the rate of drawback to be given in respect of the exported goods and though it may be a fact that the Government while deciding the rate might not have taken into consideration the said after-clearance value of services, the said fact would not have any effect .....

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07-ST, we find that said condition (e) is unambiguous and clearly refers to the refund of the service tax paid on the specified services, if the goods have not been exported under claim of drawback. It is undisputed on record that the appellants have claimed drawback on the FOB value of the exported goods. Without doubt, the FOB value would include the value of service availed till the port area and in respect of which the refund is being claimed. As such, it can be rightly concluded that as the .....

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ther, the appellant relying on the decision of the Tribunal in the case of Bhadresh Trading Corporation Ltd. referred supra is also not appropriate inasmuch as there is a clear finding by the Tribunal that only a drawback of the customs duty was being claimed by the assessee in that case and no drawback of service tax was ever claimed. It stands clearly recorded in para 7 of the said decision that the appellant has not filed or claimed drawback of the service tax paid on the specified services. .....

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