TMI Blog2016 (9) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... cked primary jurisdiction merely because of a circumscribed demand as being contended by the assessee. This contention too therefore fails. Therefore, the impugned order is unsustainable. - Decided in favour of Revenue - SERTA 6/2015 & C.M.No. 28127/2015 - - - Dated:- 30-8-2016 - MR. S. RAVINDRA BHAT AND MS. DEEPA SHARMA JJ. Appellant Through: Mr.Harpreet Singh, Sr.Standing Counsel Respondent Through: Mr.Bimal Jain and Ms.Shilpi Jain Sharma, Advocates MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) 1. The question of law urged by the revenue in this appeal pertains to the correctness of the tribunal s order whereby it directed the adjudicating authority to sanction the respondent/assessee s refund claim after verifying the documents. 2. The brief facts are that the respondent is an exporter of manufactured cotton yarn. It sought refund on the strength of Notification No.41 of 2007, as amended by later Notifications Nos.17/2008, 3/2008 and 33/2008. The adjudicating authority in the first instance rejected the claims; the matter was remitted by the appellate commissioner upon which the refund was partly granted to the tune of `8.48 lakhs. The assessee once agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no right to re-examine the refund claim but only can verify the documents as directed by the Commissioner (Appeals). 10. On merits also I have considered the issue. In the Notification No.41/2007, there is no condition that if the services availed prior to the date of notification, the appellant are not entitled to refund claim as held by the Hon'ble Bombay Court in the case of WNS Global Service Pvt.Ltd. (supra). Relying on the judgement of Hon'ble Allahabad High Court in the case Addi Industries Ltd., the contention of the ld.AR that the conditions of the notification are required to be fulfilled by the appellant, I find that in the case of Addi Industries Ltd.(supra), the condition of the notification was that refund claim is to be filed within the prescribed time but there is no condition in the notification that if the services availed prior to insertion of services as notified services in the notification No.41/2007, refund is not admissible. Therefore reliance on the case of Addi Industries (supra) is not acceptable as the facts of that case are different to the present case. 11. In the circumstances, I set aside the impugned order and direct the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the High Court. The CESTAT had stated that unless there is an express stipulation in the amendment of a legal notification that it would apply for exports prospectively, it is deemed to apply for exports effected in the past as well so long as they are after the base notification. Learned counsel highlights that since the amending notification adds to the base notification, it should be construed as clarificatory. He also relies upon the judgment of the Supreme Court reported as Commissioner of Central Excise vs. Sesa Goa Ltd. 2015 (321) ELT A66 (SC). It also relied upon the opinion of the CESTAT in its judgment i.e. Commissioner of Central Excise vs. Sesa Goa Ltd. 2014 (299) ELT 221 (Mum.) . It was next urged that the adjudicating authority exceeded the scope of the remand and thereby violated the law. Counsel contended that neither in the original proceeding nor even on the first remand was the issue of entitlement or eligibility of the assessee to claim the refund ever put to it. In the circumstances, the adjudicating authority could not have in the pretext of working out the remand by the commissioner, who had all but allowed the refund claims, revisit the eligibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court to contend that the beneficial notification which includes goods, articles or services as subjects of rebate, exemption of duty, refund etc. should be construed liberally. It is alternatively argued that these notifications which amended the base notifications, were merely clarificatory. The judgment of the Supreme Court in Commissioner of Central Excise, New Delhi vs. Hari Chand Shri Gopal 2010 (260) ELT 3 (SC) is an authority for the proposition that a clarificatory notification can be said to relate back to a point of time having regard to its terms. That seems to be the premise of CESTAT s decision in Sesa Goa Ltd. s case (supra) which was affirmed by the Supreme Court. 7. In this case, however, the original notification i.e. 40/2007 which was revised by base notification specified only few amongst several as the services for which refund claim could be made. The list was augmented subsequently in 2008 by three separate notifications each of which were expressly prospective. The terms of notification in this case are such that it would rule out their clarificatory nature as is contended on behalf of the assessee. To say that notification is clarificato ..... X X X X Extracts X X X X X X X X Extracts X X X X
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