TMI Blog2019 (10) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... f can be granted contrary to the statute and, therefore, no direction can be issued to an Authority to condone the delay in filing the refund application. The Commissioner (Appeals) committed no illegality in rejecting the claim for refund made beyond the period of one year from the date of export of the goods - appeal dismissed. - Service Tax Appeal No. 52503 of 2016 -DB With Service Tax Appeal No. 52504 of 2016 And Service Tax Appeal No. 52519 of 2016 - Final Order No. 50946-50948/2019 - Dated:- 9-7-2019 - MR, DILIP GUPTA, PRESIDENT AND MR. BIJAY KUMAR, MEMBER (TECHNICAL) For The Appellant : Ms. Smruti Amin, Advocate For The Department : Shri Sanjay Jain, Authorised Representative ORDER Justice Dilip Gupta: These three appeals seek to challenge the orders passed by the Commissioner (Appeals) to the extent the claims filed for a period beyond one year from the date of export of the goods for refund under Notification No. 17/2009 dated 7 July 2009 were rejected. 2. The appellant is engaged in the export of various items to overseas buyers and for the said busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) the exporter claiming the exemption has actually paid the service tax on the specified service to its provider; (d) no CENVAT credit of service tax paid on the specified service used for export of said goods has been taken under the CENVAT Credit Rules, 2004; (2) the exemption shall be given effect to in the following manner, namely :- (a) (b) (c) (d) . (f) the claim for refund shall be filed within one year from the date of export of the said goods. 4. The claims for refund filed within one year from the date of export of goods were allowed but claims filed beyond one year were rejected. The details of the refund claims in the appeals are as follows: Sr. No. CESTAT Appeal Number Period involved Refund claim date Refund applied Refund rejected 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces such as Clearing and Forwarding Agent Service, Terminal Handling Service, Custom House Agent Service and Technical Inspection and Certification Service in connection with the export of the aforesaid goods and paid service tax thereon. The appellant could not take the credit of input services as it was in the business of export. The Notification dated 7 July, 2009, however, enabled the appellant to claim refund. The appellant, accordingly, filed three refund applications for the period October - December, 2010, January - March, 2011 and July - September, 2011 on 8 December, 2011, 16 March, 2012 and 10 July, 2012 respectively. The Notification dated 7 July, 2009 provides that the claim for refund shall be filed within one year from the date of export of the said goods. It is not in dispute that the refund applications filed by the appellant covered both the periods namely those within one year and those beyond one year. The appellant has been granted refund for claims filed within one year but refund has been disallowed for the claims filed the period beyond one year. 8. The contention of learned Counsel for the appellant is that the delay in filing the refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41/2007-S.T. The said notification is an exemption notification issued in terms of Section 93(1) of Finance Act, 1994. It exempts taxable services listed therein, received by an exporter and used for export of goods, from the whole of service tax leviable thereon subject to certain conditions. The exemption is to be claimed by the exporter, by way of refund claim. The time limit for filing such claim has been mentioned in para 2(e) for the said notification. The notification does not refer to any other supporting provision, like Section 11B of the Central Excise Act, 1944 with reference to time limit. As already noted, Notification No. 41/2007 is dealing with exemption and Section 11B of Central Excise Act deals with refund of excess/erroneously paid duty. Notification No. 41/2007 is a self-contained exemption procedure which also stipulates certain time limits for claiming the said exemption by way of refund. Such time limit cannot be brushed aside as simple technical procedural requirement. 7. We have referred to various decided cases relied upon by both the sides. The respondent relied on various cases in support of the impugned order. In CCE, Pune v. Chandrash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the conditions stipulated in an exemption notification can be said to be a mere matter of procedure, on which some amount of laxity can be given. It was held that the conditions mentioned in the notification cannot be considered as mere procedural requirements which can be relaxed. Further, in Midex Global Pvt. Ltd. v. CCE, Indore reported in 2016 (41) S.T.R. 125 (Tri.-Del.), it was held that the exemption available will be only on fulfilment of conditions prescribed therein. The Tribunal held that Notification No. 41/2007 is available only on fulfilment of condition including filing of claim within time limit prescribed therein. The Tribunal noted that this is an exemption notification and not a refund within the scope of Section 11B. Similar ratio was adopted in Spark Engineering P. Ltd. v. CCE, Ghaziabad reported in 2013 (31) S.T.R. 71 (Tri.-Del.), in Calcutta Export Company v. CCE, Kolkata-II reported in 2016 (44) S.T.R. 672 (Tri.-Kolkata), Sakay Overseas v. CCE, Ludhiana reported in 2014 (33) S.T.R. 456 (Tri.-Del.) and H.R. International (Unit-II) v. CCE, Ludhiana reported in 2015 (37) S.T.R. 649 (Tri.-Del.). 10. Considering the above discussion and deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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