TMI Blog2023 (7) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... tive provision of the statute while a notification is only part of a subordinate legislation and cannot override the parent statute. When the time limit of one year has to be calculated? - HELD THAT:- The said issue was also examined by a coordinate Bench of this Tribunal in BALKRISHNA TEXTILES PVT LTD VERSUS C.C.E. -AHMEDABAD-I [ 2022 (6) TMI 613 - CESTAT AHMEDABAD] wherein it was held that the relevant date of computing six months under Notification 41/2007-ST is to be taken on the date when service tax is paid and not from the first day of the month following the quarter in which the export is made. Thus, the time limit should be construed accordingly. Claim of refund by the appellant as per Notification No. 17/2009 dated 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri M. Ajit Kumar, Member (Technical) Shri G. Shiva Kumar, Chartered Accountant for the Appellant Shri N. Sathyanarayanan, AC (AR) for the Respondent ORDER This is an appeal filed against Order in Appeal No. 320/2012 dated 21.12.2012 passed by the Commissioner of Central Excise (Appeals), Madurai. 2. The facts of the case are that the appellants are manufacturers of woven fabrics such as kitchen terry towel, dish cloth etc. They are paying Service Tax under Reverse Charge Mechanism (RCM) on the foreign Agents Commission used for the export of goods. They filed, a refund claim under the provisions of Notification No. 17/2009-ST dated 7.7.2009 on 6.7.2010 for refund of service tax of Rs.25,44,209/- paid by them under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006-CE (NT) dated 14.3.2006 which was issued under the said Rule. Aggrieved by the rejection of the refund claim by the original authority, the appellants filed an appeal before Commissioner (Appeals) who after examining the matter has upheld the Order in Original and rejected the appeal. Hence this appeal. 3. No cross objections have been filed by the respondent department. 4. I have heard Shri G. Shiva Kumar, learned Chartered Accountant on behalf of the appellant and Shri N. Sathyanarayanan, learned AC (AR) for the respondent. 5. The learned consultant for the appellant submitted that they are registered for payment of service tax as a recipient of services under the category of Goods Transport Agency Service and Business Auxil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of tax under reverse charge mechanism and not the actual quarter of export. The eligibility to refund itself arises only after payment and consequently the limitation cannot start prior to the crystallization of the right to receive the refund. In the case of the refund under Notification No. 41/2007-ST which provided a period of six months for filing refund claim, it has been held in a series of cases that the time limit of one year as per section 11B of the Central Excise Act, 1944 would apply and that the Notification cannot prescribe a lower time limit than granted by the section. Further, Notification No. 18/2009 granted exemption upfront on the commission and the tax paid by them in excess was by mistake and as an abundant caution f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, namely, Section 11B, is applicable. We also note that even the subsequent subordinate legislation in the form of Notification No. 17/2009 dated 07.07.2009 has prescribed time-limit of one year. I agree with the views above as section 11B of the Act is a substantive provision of the statute while a notification is only part of a subordinate legislation and cannot override the parent statute. 9. Secondly, the issue as to when the time limit of one year has to be calculated was also examined by a coordinate Bench of this Tribunal in Balkrishna Textiles Pvt. Ltd. (supra) wherein it was held that the relevant date of computing six months under Notification 41/2007-ST is to be taken on the date when service tax is paid and not from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage. This being so I find that the appellants are eligible for the duty paid mistakenly when they were eligible for exemption under Notification 17/2009-ST dated 07/07/2009. 12. Since I find that the appellant is eligible for exemption under notification No. 17/2009-ST dated 07.07.2009, the issue of failure of the appellants to comply with the various conditions stipulated under the Notification No. 5/2006-CE (NT) dated 14.3.2006, issued under Rule 5 of CENVAT Credit Rules, 2004 does not survive. 13. Based on the facts as discussed above, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
