9911796707
TMI Blog2023 (6) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... elow, in terms of the Notification No 41/2012-ST dated 29th June 2012. Services- Technical Inspection and Certification S No Period Date of Filing Amount 1 July 17-Sept 17 13.06.2018 17,49,237 2 Oct 17-Nov 17 26.09.2018 2,45,445 Total 19,94,682 2.2 The said refund claims were adjudged by the jurisdictional Assistant Commissioner stating as follows: "7. I hereby sanction refund amount of Rs 19,30,237/- (Rupees Nineteen Lakhs Thirty Thousand Two Hundred and Thirty Seven Only) and reject an amount of Rs 64,625/- (Rupees Sixty Four Thousand Six Hundred and Twenty Five Only) under Section 93A of the Chapter V of the Finance Act, 1994 read with the provisions of Notification No 41/2012-ST dated 29.06.2012 as amended." 2.3 Revenue challenged the above order before Commissioner (Appeals) on the following grounds: i. The provision of Notification No 41/2012-ST dated 29.06.2012 ceases to be applicable from 01.07.2017. ii. The provision of time of supply of goods is applicable under Section 12 of CGST Act, 2017 for export of goods during the period of October to December 20017. iii. Under Section 16 of the IGST Act, GST is not applicable in India on e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id on the specified service used for export of said goods has been taken under the CENVAT Credit Rules, 2004: (e) the claim for refund shall be filed within one year from the date of export of the said goods. (f) the rebate being claimed in this case is not a unit or developer of a Special Economic Zone. ii) Details of the LEO dates after considering the withdrawal are as under: Sr No Period of refund claim Date of filing of refund claim Total refund claimed (In Rs.) First LEO date of the period 1 July 2017 to Sept.2017 13.06.2018 17,49,237/- 04.07.2017 2 Oct. 2017 to Nov.2017 26.09.2018 2,45,445/- 04.10.2017 Total Rs. 1994,682/- From the above table, it is clear that the refund claim has been filed within the stipulated time period of one year as specified in the said Notification for the period July 2017 to September 2017 and for the period October 2017 to November 2017. iii) The said claimant has claimed refund of service tax paid on "Technical inspection and Certification which are taxable services as the same are neither covered in negative list nor in any exemption notification. The said services are cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per documents is more than 20% of the amount calculated as per scheduled rate. Thus the claimant is fulfilling the condition mentioned in Para No.1(c) of Notification No.41/2012-ST dated 29.6.2012. vi) It is further seen that the question of unjust enrichment does not arise, since the rebate is granted to the exporter of goods by virtue of Notification No. 41/2012-ST dated 29.06.2012, which is in the form of refund of Service Tax paid on specified input services which are received and used by the exporter in relation to the goods exported and has not received electronic rebate of Service Tax from Customs on the shipping bills on which rebate is claimed on the basis of procedure prescribed in paragraph 2 of the said Notification. The said claimant has submitted required declaration and undertaking mentioning that the claimant is not claiming CENVAT Credit of service tax paid on the specified services which are received and used for export of goods in question. The sale proceeds in respect of goods exported have been realized by the said claimant, as seen from the relevant copies of Bank Realization Certificates. Further the claimant is not a unit or developer of a Special Econo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The issue to be determined is whether the Adjudicating Authority has rightly sanctioned refund to the respondents or the same was liable to be rejected as contended by the appellant Department. Section 142 of the CGST Act, 2017 explains Miscellaneous transitional provisions. The respondents have relied upon section 142(4) of CGST Act, which reads as under: Section 142(4): Every claim for refund filed after the appointed day for refund of any duty or tax paid under existing law in respect of the goods or services exported before or after the appointed day, shall be disposed of in accordance with the provisions of the existing law: Provided that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse: Provided further that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act. As per the submission of the respondents, as per the provision of Section 142(4) of CGST Act their claim is bona fide. However, Rule 3 of Point of Taxation Rules, 2011, interalia provides that the point of taxation shall be the time when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd claim under the repealed Notification and it can be construed that the refund sanctioning authority has erred in sanctioning the subject refund claim. Respondents have contended that Section 173 of the CGST Act, 2017, begins with the qualification "Save as otherwise provided under this Act,..." But I am constrained to note that there is no saving clause which would forestall repealing of the Notification No.41/2012-ST dated 29.06.2012." 4.4 Before we proceed further it is necessary to read the Notification in dispute. The text of the notification is reproduced below: New Delhi, the 29th June, 2012 Notification No. 41/2012-Service Tax G.S.R. ___ (E).- In exercise of the powers conferred by section 93A of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) number 52/2011 - Service Tax, dated the 30th December, 2011, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 945(E), dated the 30th December, 2011, except as respects things done or omitted to be done before such supersessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax code number referred to in clause (b), shall be obtained by filing a declaration in Form A-2 to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, of such exporter; (d) the exporter shall make a declaration in the electronic shipping bill or bill of export, as the case may be, while presenting the same to the proper officer of customs, to the effect that- (i) the rebate of service tax paid on the specified services is claimed as a percentage of the declared Free On Board(FOB)value of the said goods, on the basis of rate specified in the Schedule; (ii) no further rebate shall be claimed in respect of the specified services, under procedure specified in paragraph 3 or in any other manner, including on the ground that the rebate obtained is less than the service tax paid on the specified services; (iii) conditions of the notification have been fulfilled; (e) service tax paid on the specified services eligible for rebate under this notification, shall be calculated by applying the rate prescribed for goods of a class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the head office, as the case may be, in Form A-1; g) the claim for rebate of service tax paid on the specified services used for export of goods shall be filed within one year from the date of export of the said goods. Explanation .- For the purposes of this clause the date of export shall be the date on which the proper officer of Customs makes an order permitting clearance and loading of the said goods for exportation under section 51 of the Customs Act, 1962(52 of 1962); h) where the total amount of rebate sought under a claim is upto 0.50% of the total FOB value of export goods and the exporter is registered with the Export Promotion Council sponsored by Ministry of Commerce or Ministry of Textiles, Form A-1 shall be submitted along with relevant invoice, bill or challan, or any other document for each specified service, in original, issued in the name of the exporter, evidencing payment for the specified service used for export of the said goods and the service tax paid thereon, certified in the manner specified in sub-clauses (A) and (B): (A) if the exporter is a proprietorship concern or partnership firm, the documents enclosed with the claim shall be self-certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not received by or on behalf of the exporter, in India, within the period allowed by the Reserve Bank of India under section 8 of the Foreign Exchange Management Act, 1999 (42 of 1999), including any extension of such period, such rebate shall be deemed never to have been allowed and may be recovered under the provisions of the said Act and the rules made thereunder; (5) This notification shall come into effect on the 1st day of July, 2012. 4.5 From the perusal of the above reproduced notification it is evident that the notification is complete code in itself as it - creates the right to rebate of the service tax paid on the input services received by the exporter of the goods for use in the export of the goods; Provides for the manner in which the notification providing for the rebate of service tax paid on such input services shall be given effect to; Provides for the required safeguards and conditions in implementing the scheme as per notification; Provides for the period of limitation within which such refund claim needs to be filed; Provides for the manner in which rebate/ refund claim shall be processed by the jurisdictional officer and also the time perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he right, which had accrued to a party such as the availability of a scheme, is affected and, in particular, it loses sight of the fact that the provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. Therefore, the Scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier Scheme was applied under which the assessees had availed of the credit facility for payment of taxes. It is on the basis of the earlier Scheme necessarily that the taxes have to be adjusted and payment made complete. Any manner or mode of application of the said Rule would result in affecting the rights of the assessees. 6. We may look at the matter from another angle. If on the inputs, the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus, a right accrued to the assessee on the date when they paid the tax on the raw materials or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of commencement of this Act, .... (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (hereafter referred to as "such amendment" or "amended Act" , as the case may be) to the extent mentioned in the sub-section (1) or section 173 shall not- (a) .....; or (b) .....; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed Acts or orders under such repealed or amended Acts: Provided ....; or (d) ......; or (e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
