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2016 (4) TMI 328 - CESTAT MUMBAI

2016 (4) TMI 328 - CESTAT MUMBAI - 2016 (43) S.T.R. 203 (Tri. - Mumbai) - Period of limitation - Refund claim - Exported printed books for which exemption was claimed through a refund route prescribed in Notification No. 41/2007-ST dated 6th October 2007 - Tax paid on services utilized in production and export of goods - Refund claim for the quarter ending September 2008 was filed on 31 st March 2009 and refund claim for the quarter ending December 2008 was filed on 30th June 2009 - Held that:- .....

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uld be computed with effect from date of original, albeit incomplete, filing being settled law, the appellant is entitled to refund as per claim. - Decided in favour of appellant - Appeal No. ST/15 & 16/2012 - Final Order Nos. A/86655-86656/2016-WZB/STB - Dated:- 24-9-2015 - M V Ravindran, Member (J) And C J Mathew, Member (T) For the Appellant : Shri L Badrinarayanan, Adv For the Respondent : Shri A K Goswami, Addl. Commissioner (AR) ORDER Per C J Mathew M/s Repro India Ltd is in the business o .....

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relation to exports of each quarter is to be preferred in a single claim. The claims of M/s Repro India Ltd for the period from July 2008 to September 2008 and from October 2008 to December 2008 were rejected as 'time-barred' by the Deputy Commissioner of Central Excise, Belapur. Commissioner of Central Excise (Appeals), Mumbai - III concurred with this finding and hence these appeals have been filed by M/s Repro India Ltd. before us. The issues being common, we take up both appeals for .....

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e, the notification is reproduced: GOVERNMENT OF INDIA MIISTRY OF FINANCE (Department of Revenue) New Delhi, the 6th October, 2007 Notification No. 41/2007-Service Tax G.S.R. (E) In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.40/2007-Service Tax, dated the 17th September, 2007 which was published in the Gazette of Ind .....

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tax leviable thereon under section 66 and section 66A of the said Finance Act, subject to the conditions specified in the corresponding entry in column (4) of the Schedule: Provided that- (a) the exemption shall be claimed by the exporter of the goods for the specified services received and used by the exporter for export of the said goods; (b) the exemption claimed by the exporter shall be provided by way of refund of service tax paid on the specified services used for export of the said goods .....

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d services used for export of said goods shall not be claimed except under this notification. 2. The exemption contained in this notification shall be given effect to in the following manner, namely:- (a) the person liable to pay service tax under sub-section (1) or sub-section (2) of section 68 of the said Finance Act shall pay service tax as applicable on the specified services provided to the exporter and used for export of the said goods, and such person shall not be eligible to claim exempt .....

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d to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture or warehouse, and (ii) the exporter, other than a manufacturer-exporter, shall file the claim for refund to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, of such exporter; (c) the .....

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ral Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after due verification, allot a service tax code (STC) number to the exporter within seven days from the date of receipt of the said Form; (e) the claim for refund shall be filed on a quarterly basis, within sixty days from the end of the relevant quarter during which the said goods have been exported: Provided that the said goods shall be deemed to have been exported on the date on which the proper officer of Cu .....

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he Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after satisfying himself that the said services have been actually used for export of said goods, refund the service tax paid on the specified services used for export of said goods; (h) where any refund of service tax paid on specified services used for export of said goods has been paid to an exporter but the sale proceeds in respect of the said goods have not been realised by o .....

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8-ST dated 18 th November 2008. Thereafter vide notification no. 17/2009-ST dated 7 th July 2009, the deadline was further extended to one year from the end of the relevant quarter. 5. It appears that refund claim of ₹ 9,46,278 for the quarter ending September 2008 was filed on 31 st March 2009 and refund claim of ₹ 24,81,551/- for the quarter ending December 2008 was filed on 30 th June 2009. That these two claims were filed on the very last permissible day is not in doubt and there .....

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e. Ultimately, separate show cause notices for rejection of the refund claim of the two quarters were issued on 6 th May 2011. 7. Interestingly, the show cause notices insisted upon conclusion of proceeding by 22 nd May 2011 apparently motivated by the belief that interest liability, as prescribed in section 11BB of Central Excise Act, 1944, would devolve. We consider it to be interesting because the refunds claims were finally lodged for the last time on 22 nd February 2011 and 28 th February 2 .....

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L/2011-12 both dated 30 th September 2011, concurred with the original authority that the claims, having been filed only on 20 th February 2011 and 28 th February 2011, were hopelessly time-barred. 8. Heard the Learned Counsel for appellant and the Learned Authorized Representative. The resolution of this dispute turns on whether the claims were filed on 31 st March 2009 and 30 th June 2009 respectively on February 2011 as recorded by the original authority. 9. Undoubtedly, there were deficienci .....

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tion. The returns of the applications for rectifying deficiencies and the re-filings thereafter is a clear indication that the competent authorities were not unaware that the claims had been filed on time. If the completeness of the application was sine qua non for admissibility of the application, the claim could well have been rejected by immediate issue of a show cause notice and adjudication thereupon instead of taking the course that it did. 11. With this elapse of time in finalizing the cl .....

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re constrained to make such an observation because the law on this aspect is well-settled. That the appellant is an exporter whose prices, in accordance with well-entrenched policy, are not to be loaded with the tax element should have been sufficient cause to demonstrate judiciousness in disposing off the claims. 13. The Hon'ble High Court of Delhi has, in Commissioner of Central Excise, Delhi-I v Arya Exports and Industries [2005 (192) ELT 89 (Del), held: '4….. The assessee had .....

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on the ground that the same was not filed in the prescribed form. If the refund claim has not been filed on proper form or without necessary documents the Department can direct the appellants to file the same in proper prescribed form along with supporting documents. But as far as the time for filing the refund claim is concerned, it has to be considered from the date the refund claim was filed initially in the form not prescribed or without documents.' the Court held 5. The above approach o .....

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ed in the present case. The appeal is dismissed on merits.' 14. This Tribunal in Duraline India Pvt Ltd v Commissioner of Central Excise, Goa [2009 (237) ELT 689 (Tri-Mumbai)], Rubberwood India (P) Ltd v Commissioner of Customs (Appeals) Cochin [2006 (206) ELT 536 (Tri-Bang)], Goodyear India Ltd v Commissioner of Customs, New Delhi [2002 (150) ELT 331 (Tri-Del)], Commissioner of Central Excise, Bolpur v Bhandigurhi Tea Estate [2001 (134) ELT 116 (Tri - Kolkota)], Wood Working Centre v Collec .....

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