TMI Blog2019 (3) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... ice provider by the ISD office for common services was beyond one year from the date of such payment. The adjudicating authority had processed the refund claim without verifying the compliance with the condition regarding time limitation prescribed in clause (e) of Para 3(III), even then there is no warrant to remand the matter back to the adjudicating authority as has been contended by the Revenue, inasmuch as, even if the adjudicating authority had not exercised the jurisdiction vested with it, we can do so and we exercise the said discretion and condone the delay in filing the claim for refund, as prescribed in clause (e) of para 3 (III) of Notification No.12/2013 In case of ISD invoices for all the purposes be it cenvat or refund, the ISD invoice is deemed to be tax paying document, hence the date of that ISD invoice has to be taken even for computing the one year stipulated in the notification. Therefore as long as the SEZ unit files the claim for refund within one year from the ISD unit distributing credit to it, it is reasonable to condone the delay, if any, in filing the claim for refund from the time period of one year from the end of the month, in which tax payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) did not find merit in either of the said contentions urged by the Revenue in its appeal and dismissed the same. The Revenue has preferred an appeal against the order of the Commissioner (Appeals) and has prayed that the matters be remanded to the adjudicating authority for verifying compliance with conditions in clause (a) and (e) of Para 3(III) of Notification No.12/2013-ST. 2. Shri Sameer Chitkara, Ld. Additional Commissioner (AR) appearing on behalf of the Revenue, reiterates the grounds in the appeal filed by the Revenue. In sum, he prayed that the matters be remanded back to the adjudicating authority for the purpose of: (a) Verifying the actual date of payment of the invoices (mother invoices) pertaining to the ISD invoices for ascertaining whether the claim of the Respondent was time barred or not as per condition in clause (e) of para 3 (III) of the Notification; and (b) verifying the correctness of the distribution of credit to the SEZ unit made through the ISD invoices i.e. whether the same was done in accordance with the requirements of Rule 7 of CCR 2004, as provided in clause (a) of para 3(III) read with para 2 of Form A-4 of the Notification. 3. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one year from the end of the month in which actual payment of service tax was made by the SEZ unit to the registered service provider, did not apply to refunds cases covered by Table-II of Form A-4. It was submitted that services in respect of which refund was claimed under Table-II were common to the DTA and the SEZ unit, for which payment is made by the DTA unit to the registered service provider. In respect of such services there was no privity of contract between the SEZ units and the registered service provider, consequently, the question of the SEZ unit making any actual payment to such registered provider did not arise. Thus, the event which is the starting point for calculating of limitation under clause (e) never occurred in respect of services covered under Table-II. It was further submitted that the said position clearly emerges if one compares the language employed in clause (d) and (e) of para 3(III). It was pointed out that while clause (d) merely requires that the amount shown in the duty paying document, including service tax should have been paid to the person liable to pay the service tax, i.e. the registered service provider (without making any reference to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent could have alternatively claimed the very same refund in terms of Rule 5 of the Cenvat Credit Rules, 2004, as had been held by the co-ordinate bench of this Tribunal in the case of Barclays Global Service Centre Pvt. Ltd vs. Commissioner of Central Excise reported in 2013 (362) ELT 889. It was also submitted that the amounts quantified as being in dispute in the appeal filed by the Revenue was incorrect. 4. We have carefully gone through the submissions made by both sides and perused the records. The dispute in the instant case lies in a very narrow compass and revolves only around compliance with conditions of clause (a) and (e) of para 3 (III) of Notification 12/2013-ST in respect of the refund of the service tax paid on specified services, that were common to authorized operations in the SEZ and the operations in the DTA, as listed in Table-II of form A-4 to the refund application. For ease of reference the said clause (a) and (e) of para 3(III) are reproduced herein below: (a) the service tax paid on the specified services that are common to the authorized operation in an SEZ and the operation in domestic tariff area [DTA unit(s)] shall be distributed amongst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich his predecessors have followed, which orders have been accepted and no appeal or review proceedings have been filed against the same. It was also submitted that clause (e) envisages thatthe time period for claiming refund can be extended by the Assistant Commissioner and that there being no obligation on the part of the adjudicating authority to set out reasons for extending the period, the order of the adjudicating authority could be construed as one having extended the period within which the refund could be claimed inasmuch, as the refund had been filed within one year of the date of the ISD invoices, which is the earliest point of time when the SEZ unit became aware of the extent of tax attributable in respect of the services which were common to it as also the DTA operations. 6. While we find the arguments made by the Respondent with regard to inapplicability of the clause (e) to refund claims covered by Table-II of Form A-4 of Notification 12/2013, being convincing, we are not inclined to deal with this aspect in these proceedings, as we do not find any infirmity in the adjudicating authority having granted refund by following the practice and the precedence set by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice for common services i.e. the services other than services used exclusively for the authorized operations of SEZ have been beyond one year. In terms of S.No.3(III) (a) of Notification No.12/2013-ST dated 01.07.2013, refund claim for common services can be filed once ISD office have distributed the credit to SEZ unit, and hence we have ensured that refund claim is filed within one year from the date of ISD invoice to comply with the requirement of Sr.No.3(III)(e). Taking cognizance of the same, the adjudicating authority has while dealing with the refund claim in respect of cases covered by Table-II of Notification No.12/2013, specifically recorded that the claims had been filed within one year from the date of the ISD invoices issued to the SEZ unit. As against this, in respect of refunds covered by Table-I of Form A-4 the adjudicating authority has recorded that the refund has been filed within one year from the end of the month in which actual payment of service tax has been made. The fact that the adjudicating authority has taken due cognizance of the difference in the factual position qua cases covered under Table-I of Form A-4 vis- -vis those covered under Table-II of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we exercise the said discretion and condone the delay in filing the claim for refund, as prescribed in clause (e) of para 3 (III) of Notification No.12/2013. In our view any other interpretation would do violence to the objective with which the entire exemption mechanism by way of refund has been put in place. It is an undisputed position that the legislature has provided that there cannot be any tax incidence on any service which is used by an SEZ unit for undertaking its authorized operations. In line with its objective the Central Government has formulated a refund mechanism in respect of services which are common to both the DTA unit and the SEZ. Qua such service, which are common to the SEZ unit and DTA unit the earliest point of time whenthe SEZ unit can claim such refund is after the ISD has distributed the tax credit, for which incidentally there is no time limit prescribed in Rule 7 of the Cenvat Credit Rules. We are also of the clear view that in case of ISD invoices for all the purposes be it cenvat or refund, the ISD invoice is deemed to be tax paying document, hence the date of that ISD invoice has to be taken even for computing the one year stipulated in the notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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