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2016 (7) TMI 1078 - CESTAT CHENNAI

2016 (7) TMI 1078 - CESTAT CHENNAI - TMI - Refund - Period of limitation - relevant date - Claim of rebate of service tax paid on specified services used for export of goods under Notification No. 41/2012 ST dated 29.06.2012 - Held that:- the claims submitted by the appellants were scrutinized thoroughly as per the para 3 (g) of Notification No. 41/2012-ST and he has taken the date of let export order issued by the proper officer as the relevant date to come to the conclusion that the refunds ar .....

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, given the expropriatory consequences of such a limitation period. There is a body of law that essential legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate legislation. The parent enactment must clearly impose such obligations. Sub-ordinate legislation cannot prevail or be made in such cases. - The imposition of period of limitation, without statutory amendment, through a notification, therefore, cannot prevail. The Jai .....

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- Final Order No. 41108-41110 / 2016 - Dated:- 14-7-2016 - Shri P. K. Choudhary, Judicial Member For the Appellant : Shri S. Kannappan, Advocate For the Respondent : Shri R. Subramaniyan, AC (AR) ORDER M/s. Ashok Granites Ltd., the appellant herein are exporters of granites falling under CTH 6802 and 2516 of CETA, 1985. The appellants claimed rebate of service tax paid on specified services used for export of goods under Notification No. 41/2012 ST dated 29.06.2012. The details of the rebate cla .....

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013 to 30.06.2013 2 ₹ 4,15,406/- ₹ 94,308/- 01.07.2013 to 30.09.2013 3 ₹ 55,851/- ₹ 1,32,122/- 01.10.2013 to 31.12.2013 Aggrieved by the order of the adjudicating authority, the appellants went in appeal before the Ld. Commissioner (Appeals). The Commissioner (Appeals) rejected the appeals and upheld the orders of the adjudicating authority. Hence, the present appeals before this Tribunal. 2. Ld. Counsel, Shri S. Kannappan, Advocate appearing on behalf of the appellant su .....

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the vessel. Therefore, date of shipment is the date of export. He drew the attention of the Bench to page-8/para 06.1 of the Appeal Paper Book wherein a table details the date of let export order, bill of lading and the date of filing rebate claim is as under:- S. No. Shipping Bill date Date of Let Export Order Date allowed for shipment Date of shipment Date of filing of refund claim 1. 03.06.2013 22.06.2013 22.06.2013 05.06.2013 02.07.2013 2. 02.07.2013 03.07.2013 03.07.2013 03.07.2013 08.07.2 .....

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claims filed by the appellants are not hit by time limit. He submitted a copy of the Notification No. 41/2012 dated 29.06.12 (superseded Notification No. 52/2011-ST) with regard to rebate of service tax paid on services used for export of goods and relied on para 3(g) of the notification wherein under the explanation part, it is clearly mentioned that for the purposes of this clause the date of export shall be the date on which the proper officer of Customs makes an order permitting clearance an .....

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of shipment and not from the date of let export order. He relied on the decision of the Mumbai Bench of the Tribunal in the case of Jain Irrigation Systems Ltd. Vs. CCE, Nashik 2016 (41) STR 837 (Tri.-Mum.) in support of his submissions. He therefore, prayed that the impugned order may be set aside. 3. Ld. AR, R. Subramaniyan, AC, appearing on behalf of the Revenue reiterated the findings of the adjudicating authority as well as the first appellate authority. He further submitted that the LAA co .....

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sides. On perusal of OIO s of the adjudicating authority, I find that the claims submitted by the appellants were scrutinized thoroughly as per the para 3 (g) of Notification No. 41/2012-ST and he has taken the date of let export order issued by the proper officer as the relevant date to come to the conclusion that the refunds are hit by time bar aspect. Section 51 of Customs Act, 1962, is extracted below for better appreciation:- Section 51: Clearance of goods for exportation:- Where the prope .....

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e to service tax vide Section 83 of Finance Act, 1994, which deals with the claim for refund of duty. The relevant portion of the said section is reproduced below:- Section 11B... relevant date means (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,- (i) if the goods are exported by sea or air, the date on which the ship or the air .....

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