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Commissioner of Central Excise and Service Tax, Cochin Versus M/s. Cannanore Handloom Exports

2017 (10) TMI 849 - CESTAT BANGALORE

Refund claim - time limitation - reverse charge mechanism - whether the refund claim of service tax filed by the assessee after the period of limitation prescribed under the law is to be sanctioned or not, without raising the issue of limitation? - Held that: - the impugned order is not sustainable in law as the same is contrary to the decisions of the Hon’ble Supreme Court in the case of Anam Electrical Manaufacturing Co. [1997 (1) TMI 80 - SUPREME COURT OF INDIA], where it was held that statut .....

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sed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeal of the Department and upheld the Order-in-Original. 2. Briefly the facts of the present case are that M/s. Cannanore Handloom Exports (respondent) are engaged in the manufacture and export of fabrics and also having service tax registration. The respondent is availing the services of overseas agents for procuring orders and for marketing their products abroad, which is taxable under the category of Busines .....

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ax payable for the period upto 31st March 2007 for the period from 12/2005 to 03/2007. The adjudicating authority has confirmed the demand by upholding that the respondent is liable to pay the service tax from 18/04/2006 as per the clarification given by CBEC circular dt. 26/09/2011. Since the assessee has paid more service tax than it was payable, consequently they filed the refund claim which was allowed by the order-in-original. Aggrieved by the said order, Revenue filed appeal before the Com .....

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e service tax for the period up to 31/03/2007. He further submitted that the Hon ble High Court of P&H in the case of Sarita Handa Exports (P) Ltd. Vs. UOI [2015(321) ELT 434 (P&H)] has held that if the application for refund is filed beyond the prescribed statutory period, then in view of the judgment of the Hon ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. UOI [1997(89) ELT 247 (SC)], the same cannot be entertained unless the refund was as a consequence of declaration o .....

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hin prescribed period of one year and the limitation for claiming the refund cannot be extended in any circumstances including when the payments are made by error of law or under mistake. The Division Bench of this Tribunal has relied upon the following decisions:- i. CCE, Hyderabad-II Vs. XL Telecom Ltd. [2006-TIOL-1982-CESTAT-BANG] ii. Asst. Collector Vs. Anam Electrical Manufacturing Co. [2002-TIOL-650-SC-CUS] iii. Mafatlal Industries Ltd. Vs. UOI [2002-TIOL-54-SC-CX-CB] 5. On the other hand, .....

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bay High Court and thereafter the CBEC vide order dt. 26/09/2011 clarified that service tax liability on any taxable service provided by a non-resident or a person located outside India to a recipient in India would arise w.e.f. 18/04/2006 only. He also submitted that the respondent had filed the refund claim for ₹ 4,11,364/- but the original authority had only granted ₹ 3,29,633/-. 6. After considering the submissions of both the parties and perusal of material on record, I find tha .....

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