TMI Blog2020 (6) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue on the facts that goods have been exported, service was used for export of goods and the value of service including service tax was paid to the service provider. In these undisputed facts, merely because registration was not mentioned in the invoices it does not mean that appellant has not used the said services for export of goods - the rejection of refund on this count is not sustainable. Time Limitation - Refund claim pertaining to the period October 2007 to December 2007 for which refund claim was filed after a period of 60 days, therefore hit by limitation - HELD THAT:- The refund for the quarter January 2008 to March 2008 which included the present claim pertaining to October 2007 to December 2007 was filed on 29.05.2008. Therefore, it was held that refund was filed beyond 60 days, hence inadmissible - the adjudicating authority adjudicated the show cause notice in 31.03.2009 and by which time the period of 60 days was extended to six months. Therefore, the extended period upto six months should have been considered. Accordingly, refund was well within time period of six months and hence does not hit by limitation. Refund claim filed for service tax paid on GTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongly rejected. The learned Commissioner (Appeals) has wrongly upheld the rejection of claim - appeal allowed - decided in favor of appellant. - SERVICE TAX Appeal No. 22 of 2010 - FINAL ORDER NO. A/11105 / 2020 - Dated:- 4-6-2020 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Hardik Modh, Advocate for the Appellant Shri Vinod Lukose, Superintendent (AR) for the Respondent ORDER The brief facts of the case are that the appellant is a merchant exporters inter-alia engaged in the business of export of goods. The appellant originally filed refund claim of ₹ 49,81,606/- on 29.05.2008 in terms of Notification No. 41/2007-ST dated 06.10.2007 as amended from time to time of service tax for the services used in export of goods. The said refund claim was filed on account of services received for export of goods for the quarter Jan 2008 to March 2008. The appellant filed letter dated 06.02.2009, withdrew the refund claim amounting of ₹ 29,22,536/- and claimed refund of the balance amount. The Assistant Commissioner of service tax vide order-in-original No. SD-02/Ref-20/09-09 dated 20.08.2009/31.03.2009 sanctioned refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es including service tax to the service providers are not in dispute. Therefore, denial of refund on this count is not tenable. He placed reliance on the judgment in the case Crystalline Exports Limited vs. CST - 2015 (37) STR 778 (Tri. Mumbai). 3. In the context of refund claim filed for October 2007 to December 2007 in the quarter of Jan 2008 to March 2008, it was filed after stipulated time limit provided Notification No. 41/2007-ST dated 06.10.2007, the Commissioner (Appeals) upheld the order-in-original on the premise that refund claim was required to be filed on quarterly basis, within a period of 60 days, at the end of relevant quarter during which the goods were exported. In the instant case, the appellant filed refund claim on 29.05.2008 for the quarter January 2008 to March 2008, however, the appellant sought refund in present claim for the quarter October 2007 to December 2007 for which the appellant earlier filed separate refund claim. Therefore, the refund claim cannot be filed after stipulated period. He submits that condition 2(e) of Notification No. 41/2007-ST dated 06.10.2007 prescribes time-limit of 60 days was extended by Notification No. 32/2008-ST dated 18.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is contrary to the notification. In support, he placed reliance on the Hon ble Supreme Court decision in the case of Commissioner of Customs vs. Dilip Kumar Company 2018 (361) ELT 577 (SC) wherein it was held that words in a statute is a clear and unambiguous, the Court is bound give effect to the said meaning irrespective of the consequences. 6. As regards denial of refund claim for storage and warehouse service, he submits that refund is rejected on the premise that there was no correlation of export with the documents of service provider of storage and warehousing. He submits that the appellant had taken storage/warehousing place on monthly rental basis on monthly payment of rent. Since monthly rent was paid it was difficult to correlate between the rental paid by the said service vis-a-visa actual storage of the exported goods. He submits that storage areas were exclusively used for export of the goods and therefore, it cannot be doubted that the said services were used for other than export of the goods. In support of his submission he placed reliance on decision in the case Vijay Cotton Fiber Company vs. CST 2014 (36) STR 1164 (Tri. Mum.). He further submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77 (S.C.). 9. We have heard both sides and carefully considered the submissions made. As regards the issue related to rejection of refund claim on the ground that registration number of service provider was not mentioned in the invoices issued by service provider, we find that learned Commissioner (Appeals) denied the refund solely relying upon the Circular No. 106/9/2008-ST dated 11.12.2008 whereas the same Circular was amended by Circular No. 112/6/2009-ST dated 12.03.2009 whereby it was clarified as under:- TABLE S. No. Issue Raised Clarification VII The service provider providing services to the exporter provides various services. But he has registration of only one service. The refund is being denied on the grounds that the taxable services that are not covered under the registration are not eligible for such refunds. Notification No. 41/2007-S.T. provides exemption by way of refund from specified taxable services used for export of goods. Granting refund to exporters, on taxable services that he receives and uses for export do not require verifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by the Hon ble Chhattisgarh High Court reprted at 2017 (6) GSTL J147 (Chhattisgarh):- The present appeal is directed against the order dated 25-3-2010 passed by the Commissioner (Appeals), Raipur. The appellant field refund claim under Notification No. 41/2007-S.T., dated 6-10-2007 for the service tax paid on services utilized in relation to export of the goods during the period October, 2007 to March, 2008. The refund claim for an amount of ₹ 51,78,225/- was filed on 27-10-2008. The original authority vide his order dated 9-12-2009 rejected the refund claim for the reason that the claim was time-barred. As per the Provision 2(e) of Notification No. 41/2007-S.T., the refund claim is to be filed on a quarterly basis within 60 days from the end of the quarter. He took the view that the claim filed on 27-10-2008 has been filed after the time limit of 60 days. When this order was challenged before the first appellate authority, the same stood rejected, and hence, the present appeal. 2. We have heard Shri A.K. Prasad, ld. Counsel for the appellant as well as Dr. Sheoran, ld. DR. 3. The ld. Counsel for the appellant submitted that the Notification No. 41/2007 was rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification issued by CBEC whereby the limitation of one year provided in the amending notification was applied. Similar issue came before the Mumbai Bench of Tribunal in the case of Raymonds Limited (supra) wherein the Tribunal has passed the following order:- 5. I have carefully considered the submissions made by both the sides. In the present case the refund claim pertains to the quarter October-December, 2008. The appellant have filed the refund claims on 30-7-2009 for the refund under Notification 41/2007-S.T. The said Notification was amended vide Notification No. 17/2009, dated 7-7-2009 so as to allow filing of the refund claim within a period of one year from the date of export of the goods. Inasmuch as the appellant filed the refund claims in July, 2009 for the quarter ending October-December, 2008, the refund claims are within a period of one year from the date of export of the goods. Therefore, the appellant would be eligible for the benefit of refund under the aforesaid Notification subject to satisfaction of other conditions stipulated in the Notification. 5.1 The Hon ble High Court of Bombay, which is the jurisdictional High Court, in the case of Uttam Steel Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fact the appellant is a merchant exporter and all the goods stored in the warehouse have been exported. In these circumstances, I hold that the appellants are entitled for refund of service tax paid on Storage Warehousing service. The above judgment was challenged by the Revenue before the Hon ble Bombay High Court wherein the substantial questions of law were framed:- (a) Whether, in the facts and circumstances of the case and in law, the CESTAT was correct in allowing the refund claim of the assessee without considering the conditions set out in Notification No. 41 of 2007 dated 6th October, 2007 as amended from time-to-time? (b) Whether, in the facts and circumstances of the case and in law, the CESTAT was correct in shifting the burden of proof on the Revenue without categorically holding that the assessee has discharged the initial burden of proof by producing tangible evidence? The Hon ble High Court made the following observation:- 5. Upon a perusal of entire paper book with the assistance of Ms. Cardozo, we are unable to agree with her. We are clear in our mind that the assessee reiterated before the Tribunal that the claim pertains to the warehousing ..... 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