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TMI Blog2020 (6) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... in-original No. SD-02/Ref-20/09-09 dated 20.08.2009/31.03.2009 sanctioned refund claim of Rs. 1,17,003/- and rejected for the balance amount. The learned Commissioner (Appeals) in order-in-appeal No. OIA-270/2009/STC/HKJ/COMMR-A-/AHD dated 08.10.2009 remanded the matter to the adjudicating authority for deciding the case on merit, in terms of Para 6 of the impugned order confirmed the order-in-original dated 31.03.2009. Ld. Commissioner (Appeals) rejected the appeal on following points; (i) Registration number of the service providers was not mentioned in the invoices issued by the service provider. (ii) 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. (iii) Refund claim filed for service tax paid on GTA Service for transportation of goods from ICD to Port was not supported with proper documents, co-related with export of goods. (iv) Refund claim filed for storage and warehouse service rejected on the premise that there was no co-relation of export with documents of service provided of storage and warehouse. (v) Refund claim was filed for GTA for transportation of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -limit of 60 days was extended by Notification No. 32/2008-ST dated 18.11.2008. In the present case, the refund was originally filed on 29.05.2008 covering the period October 2007 to December 2007; that Adjudicating Authority adjudicated the show cause notice on 31.03.2009, the time limit of 60 days was extended by six months in terms of Notification No. 32/2008-ST dated 18.11.2008. He submits that learned Commissioner (Appeals) ought to have considered that if the refund claim was filed within extended period of six months, at the end of the quarter during which the goods were exported, refund claim ought to have been allowed. In the present case, refund claim was filed on 29.05.2008 for the quarter ending July 2007 to December 2007 which is in the period of six months from the end of quarter. Therefore, it does not hit by limitation as held in the following cases:- (a) KN Resources Pvt. Limited vs. CCE - 2017 (47) STR 303 (Tri. Del.) - upheld by Chhattisgarh High Court reported in 2017 (6) GSTL J147 (b) Raymonds Limited vs. CCE - 2015 (38) STR 441 (Tri. Mumbai) (c) Gran Overseas Limited vs. CCE - 2017 (52) STR286 (Tri. Del) (d) Ruchi Soya Industries Limited vs. CCE - 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CST - 2014 (36) STR 1164 (Tri. Mum.). He further submits that the above judgment was upheld by Hon'ble Bombay High Court reported at CST vs. Vijay Cotton & Fiber Company - 2017 (48) STR 450 (Bom.). 7. As regards refund claim filed for GTA service for transportation of goods from the place of removal upto the Port which was denied on the premise that Lorry Receipts does not mention name of the appellant therefore, refund claim is not supported with proper documents. He submits that in this case the goods were purchased from Mafatlal Industries Limited and the goods were transported directly from the factory to Port. All the documents related to export were in the name of appellant. Due to inadvertent mistake on the part of transporters, the name of appellant was not mentioned in the Lorry Receipts. He submits that it is undisputed fact that appellant availed GTA service and paid freight for such services in terms of rule 2(1)(d) of Service Tax Rules. Merely non-mentioning name of appellant in Lorry Receipts, refund claim ought not to have been denied. To support their case appellant procured certificates from the transporters namely M/s. Ess Enn International, Sanjay Container Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, refund should be granted in such cases, if otherwise in order. The procedural violations by the service provider need to be dealt separately, independent of the process of refund. From the above specific clarification, it is clear that refund claim cannot be rejected merely because the service provider has not mentioned registration number in their invoices. Moreover, there is no dispute raised by the 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 judgment relied upon by the appellant in the case of Crystalline Exports Limited (supra) supports their case. Therefore, rejection of refund on this count is not sustainable. 10. Regarding the issue of time-bar in filing the refund claim inasmuch as the appellant filed refund claim after stipulated time limit of 60 days as per Notification No. 41/2007-ST, we find that learned Commissioner (Appeals) upheld the rejection of claim on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time limit for filing refund claims was specified as "within one year from the date of export of the said goods". This was further changed from the position prevailing under the Notification 41/2007, in which claims were required to be filed within 60 days from the end of the quarter. 4. At the time of issue of Notification No. 17/2009-S.T. the following clarification was given by the Board :- "Further, the new Notification does not bar its applicability to exports that have taken place prior to its issuance." 5. The submission of the ld. Counsel for the appellant is that the benefit of the Board clarification should be extended to them. 6. We have gone through the said Notification as well as clarification issued by the Board. We are of the view that the clarification issued by the Board is in the nature of a benefit extended to the assessees. It is to be viewed as relaxation of the conditions prescribed under Notification No. 17/2009-S.T., even though a one time measure. We find that in the present case the exports have taken place prior to the issue of the Notification No. 17/2009. It is also seen that the refund claim was filed citing the earlier Notification No. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and the benefit allowed if the procedures are satisfied. This Tribunal in the case of Sandoz Polymers Pvt. Ltd. (supra) has also held the same view. Further, the C.B.E. & C. in Circular dated 12-3-2009 cited supra, have also held that the so long as the refund claims is filed within the extended period of time provided for in the Notification, the assessee would be eligible for the benefit of refund, subject to satisfaction of other conditions stipulated in the Notification." In view of above the refund could not have been rejected on limitation. 11. Regarding the issue of rejection of refund of service tax of GTA service used for transportation of goods from ICD to Port, on the ground that appellant failed to correlate with the amount of refund claim with the export documents. We find that services covered under Serial No. 6 of Notification No. 41/2007-ST which does not stipulate any condition. Moreover, transportation of goods from ICD to Port was undoubtedly for export of goods only. Therefore, importing any condition which is not exist in the notification is beyond the jurisdiction of learned Commissioner (Appeals) and on that ground, refund should not have been rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very goods were all exported, then, the storage charges for the services, which have been rendered, could have been made subject matter of the claim for refund. The refund of service tax paid on storage warehousing services was the claim and dealt with by the Tribunal. There was insurance cover taken. Therefore, it is not a claim based on no material or a claim which does not fulfill the conditions under the notification. It does not mean that the Tribunal's order every time mandates the Department to produce the proof in negative and blindly relies on the version of the assessee. It is in the above circumstances that the Tribunal faulted the Revenue for not being able to produce contrary evidence. Secondly, we do not think that the Revenue in this case can raise a plea that the merchant exporter was not entitled to seek refund. That is not the ground on which the claim is objected and before the Tribunal by the Revenue. The Revenue cannot introduce something for the first time and terms it as a substantial question of law. We clarify that we do not express any view on that part of the contention of Ms. Cardozo, but finding that the Tribunal's order deals with the factual cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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