TMI Blog2021 (11) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was made to have retrospective application with effect from 01.07.2012. It is clear that there was a mistake in Notification No. 41/2012, which stated that the taxable services that have been used beyond the place of removal for the export of goods would be eligible for refund. When the definition of input service includes services which have been used up to the place of removal , the same ought to have been incorporated in Notification No. 41/2012. After realizing the mistake and the ineligibility of credit / refund/ rebate on input services used for the export of goods, the amendment has been introduced by the Government by the Finance Act, 2016. It is not necessary that there should be an order of rejection of refund. If a litigation is at the stage of Show Cause Notice and there is a proposal for rejection, the Show Cause Notice has to be adjudicated after considering the amendment brought forth vide the Finance Act, 2016. It cannot be then said that the Adjudicating Authority has to first reject the claim and thereafter assessee has to file a fresh claim under the amended Notification of 2016 - The intention of the Government is very much clear from the Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the CENVAT Credit Rules, 2004; (B) place of removal shall have the meaning assigned to it in section 4 of the Central Excise Act, 1944 (1 of 1944); 3. As seen above, the Notification allowed rebate of Service Tax paid on taxable services which have been used beyond the place of removal of the goods exported. The Department was of the view that after Let Export Order is issued, it is the responsibility of the shipping line to ship the gods to the foreign buyer. The exporter has no control over the goods and then the transfer of property or sale can be said to have taken place at the port where the shipping bill is filed. The place of removal then will be the port. The rebate / refund of Service Tax for services used beyond the port only is eligible and not for services used up to the port. The appellant had claimed refund of the Service Tax paid on the input services used by them till the port. 4. Show Cause Notices were issued in 2015 proposing to reject the refund alleging that the appellant is not eligible for the refund of Service Tax on the input services used by them up to the port. The appellant then submitted letters dated 14.10.2015 before the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) (3) G.S.R. 519(E), dated the 29 th June, 2012 [No.41/2012- Service Tax, dated the 29 th June, 2012] In the said notification, in the Explanation, -in clause (A), for sub-clause (i), the following sub-clause shall be substituted and shall be deemed to have been substituted, namely:- (i) in the case of excisable goods, taxable services that have been used beyond factory or any other place or premises of production or manufacture of the said goods, for their export; ; (b) clause (B) shall be omitted 1st day of July, 2012 to 2 nd February, 2016 (both days inclusive). 6. The appellant then, in 2016, re-filed all their refund claims which were earlier returned to them. Show Cause Notices of various dates were issued by the Department proposing to reject the refund claims alleging that as per Notification No. 41/2012-S.T., the refund claim has to be filed within one year from the date of export. That the present claims having been filed beyond the period of one year from the date of export, are barred by limitation. After adjudication, the Original Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Notification No. 41/2012, such refund claims have to be allowed. 8.2.2 He submitted that sub-clause (3) provides that an application for refund claim in situations where the refund has been denied, as above, has to be made within a period of one month from the date of commencement of the Finance Act, 2016. That the Department has taken the view that when the refund claims have been returned to the appellant, it is not a situation where the refund claims have been denied . The appellant had filed the refund claims after the Budget of 2016. That even if the appellant had not requested for return of their refund claims, the same would have been rejected in view of the scenario of law that existed in the pre-amendment period. 8.2.3 Learned Counsel for the appellant stressed that the word used in the Finance Act, 2016 is not rejected but denied . That the Department had issued Show Cause Notices earlier only by raising the issue of place of removal . The refund claims were initially filed within the prescribed time-limit and there was no defect of being time-barred. However, when the claim was filed pursuant to amendment of the Notification, it was rejected as timebarred. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly. 8.4 He prayed that the appeals may be allowed. 9.1 Learned Authorized Representative Shri Vikas Jhajharia appearing on behalf of the respondent supported the findings in the impugned order. He specifically adverted to paragraph 16 of the impugned order to argue that the refund claims having been withdrawn by the appellant, it cannot be said that the refund was denied to the appellant. The proceedings were dropped in view of the said application for withdrawal by the appellant and therefore, the refund claims filed subsequently will not fall under the ambit of sub-section (2) to Section 160 of the Finance Act, 2016. 9.2 He argued that the impugned order does not call for any interference. 10. Heard both sides. 11. In Notification No. 41/2012 which was issued on 29.06.2012, the word used was beyond the place of removal . When the definition of place of removal as given in the Central Excise Act, 1944 is applied, the place where the goods are sold becomes the place of removal. The Department was of the view that only when the goods are loaded into the vessel for export, the transfer of property in goods takes place. So, the place where the sale takes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Notification of 2016. So also, if an order of rejection is pending before the First Appellate Authority or the Tribunal, it is not required to dismiss the appeal and direct the appellant to file a fresh refund claim. Since the decision in the impugned order is to deny the refund claim, the First Appellate Authority or the Second Appellate Authority, as the case may be, has to consider the amendment brought forth by the Finance Act, 2016 and then decide the appeal. The intention of the Government is very much clear from the Notification which is to grant refund retrospectively with effect from 01.07.2012. This cannot be frustrated by clinging on to technical formalities. 15. In the present case, the appellant had requested to return the refund claims only to see if other alternate remedies were available to them. Meanwhile, the Notification corrected the situation. Therefore, the appellant has filed the refund claims pursuant to the amended Notification. The rejection of refund claim then, on the ground of limitation, denying the benefit intended by the amendment is not legal and proper. 16. From the above discussions, I hold that the rejection of refund cannot sustain and r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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