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2016 (9) TMI 492 - DELHI HIGH COURT

2016 (9) TMI 492 - DELHI HIGH COURT - 2016 (45) S.T.R. 25 (Del.) - Correctness of Tribunal's order - Refund claim - eligibility - Notification No.41 of 2007, as amended by later Notifications Nos.17/2008, 3/2008 and 33/2008 - export of manufactured cotton yarn - Held that:- the assessee’s contention that the subsequent notifications were merely clarificatory and must be held to relate back or apply from the date the base notification came into force, cannot be accepted. The CESTAT reasoning is t .....

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w Delhi vs. Hari Chand Shri Gopal 2010 (11) TMI 13 - SUPREME COURT OF INDIA], it cannot be said that the adjudicating authority lacked 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.Standi .....

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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 again appealed. In the course of the appeal, the commissioner - in the order-in-appeal dated 02.09.2011, held that substantial exports of the assessee were eligible for service tax refund - approximating 43.4 .....

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y refund claim was made were included not with effect from 06.10.2007 (when the base notification i.e. 41/2007 was issued) but from later dates - substantial amounts claimed were related to Notification No.33/2008 dated 07.12.2008. The assessee s appeal was rejected by the commissioner. In the circumstances, it approached the tribunal which by the impugned order was of the opinion that the adjudicating authority could not adjudicate upon the refund claim afresh. The CESTAT also examined the corr .....

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und at the time of verification of certain documents which is also not permissible in law. As the show cause notice was issued to the appellant in the matter has already attained finality by the order of the Commissioner (Appeals) on 02.09.2011. If at all, the adjudicating authority wanted to re-examine all the refund claims, the adjudicating authority is required to be issue fresh show cause notice which the adjudicating authority has failed to do so. In the circumstances, the order dated 02. 0 .....

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led 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 conditio .....

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e his order dated 02.09.2011 within the period 90 days of the receipt of this order. 3. The revenue which is in appeal contends that the CESTAT s reasoning is untenable. It relies upon the text of the amending notifications, particularly the terms of Notification No.17/2008 and Notification No.33/2008 both of which clearly state that the amendment would come into force upon the date of publication in the Official Gazette. It is also contended that the base notification (No.41/2007) itself supers .....

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ons of the Supreme Court in Commissioner of Customs, Bangalore vs. Spice Telecom 2006 (203) ELT 538 (S.C.) and Jay Mahakali Rolling Mills vs. Union of India 2007 (215) ELT 11 (S.C.). It is pointed out that these two judgments enunciatively ruled that unless subsequent notification which amends an earlier exemption or inclusion contains a clear phrase pointing to the notification Relating back, the courts would give effect to it only from the date of their publication or issuance. It was submitte .....

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mbai 2008 (10) STR 273. Learned counsel points out that an identical fact situation, the refund claim which was made in respect of services that were subsequently included, was upheld. Reliance was placed upon the view of the CESTAT which was confirmed 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 .....

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hority 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 eligibility. In short, learned counsel emphasised the principle of .....

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he concerned notifications are that the first notification No.40/2007 was issued on 17.09.2007. That notification spelt out four services. It was superseded by Notification No.41/2007 on 06.10.2007. Thus the base notification for the first time included 12 services. Subsequent notifications kept adding to the list - these included Notification No.3/2008 (19.02.2008), 17/2008 (01.04.2008) and 33/2008 (07.12.2008). Significantly, both the base notifications superseded the earlier notification and .....

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hereon 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." It is quite apparent that the intent of the notification was only to save firstly what had been done or omitted to be done - in respect of the services that were included and secondly also to grant the benefit of the notifications of included services thereafter as is apparent from the use of the word hereby . This view gets support .....

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e 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 .....

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notification is clarificatory, there should be something enunciated in the original or base notification itself. To illustrate the Sesa Goa Ltd. s case (supra) the judgment in M/s W.P.I.L. Ltd., Ghaziabad vs. Commissioner of Excise 2005 (181) ELT 359 (SC) it was considered that Sesa Goa Ltd. s case (supra) dealt with pumps. The revenue had sought to urge that the amendment of the original notification applied prospectively. The Supreme Court negatived the contention and held that the assessee s .....

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