TMI Blog2023 (9) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... le to goods exported during the quarter ending December 2007 and only for that portion, the claim was filed beyond 60 days from the end of the relevant quarter during which the said goods were exported. Accordingly, the adjudicating authority has rejected part of the refund claim amounting to Rs.56,71,926/- as time barred. In the present case, the refund claim filed by the respondent was not a dead claim. The claim was filed well within the time limit permitted in the Notification 41/2007-ST. Only a part of the claim was held as time barred by the adjudicating authority based on his findings that a portion of the claim was relatable to goods exported during the quarter ending December 2007 . It is observed that Notification No.32/2008-ST dated 18-11-2008 extended the time limit for filing the refund claim from 60 days to 6 months and validated that portion the refund claim which was filed beyond 60 days. Thus, there is no merit in the contention of the Ld.A.R that it was a dead claim that cannot be revived. Accordingly, there is no infirmity in the impugned order, which has rightly allowed the refund of Rs.56.71.926/-, as per the Notification No.32/2008-ST dated 18-11-2008 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arred by limitation of 60 days prescribed under Para 2(e) of Notification No.41/2007- S.T. On appeal, the Ld. Commissioner (Appeal) vide the impugned Order-in- Appeal dated 30-03-2012 held that the refund of Rs.56,71,926/- was not time barred, in view of substitution of the period of limitation from 60 days to 6 month by Notification No.32/2008-ST dated 18-11-2008 and as clarified by the Board vide Circular No.112/6/2009-ST dated 12-03-2009. However, the Ld. Commissioner (Appeal) upheld the rejection of refund of Rs.2,33,288/-. Aggrieved against allowing the refund of Rs.56,71,926/-, the department has filed the present appeal. 4. The Respondent has filed cross objection against the appeal filed by the Department, wherein they made the following submissions: (i) Rejection of Refund on the ground of limitation in the Order-i-Original is outside the purview of the show cause notice and hence, denial of refund on grounds of limitation is bad in law. Accordingly, they contended that the Order-in-Appeal cannot be interfered with. (ii) The Respondent relied on the judgment of the Hon ble Supreme Court in the case of CCE Vs. Shital International reported in (2011) 1 SCC 109), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of their contention on Board's power to issue such circulars: (i) Catholic Syrian Bank Ltd. Vs CIT reported in (2012) 3 SCC 784 (Para 23, 24); (ii) State of Kerala Vs. Kurian Abraham Pvt. Ltd. reported in 2008 (224) ELT 354 (SC) (Para 18, 19); (vii) They submitted that the said Circular No.112/6/2009-S.T dated 12-03- 2009 is a beneficial circular and hence it is to be applied retrospectively. Accordingly, they contended that period of limitation of sixty days under Para 2(e) has been substituted by six months by Notification No.32/2008- S.T dated 18-11-2008 which is retrospective in effect. (viii) It is a case of exemption by way of refund. In the instant case, the factum of export is not disputed meaning thereby the eligibility to exemption is not in dispute. But, the dispute is limited to procedural/adjectival part of exemption Notification No.4/2007-ST as amended by Notification No.32/2008- ST Dated 18-11-2008. In the case of CC Vs. M. Ambalal and Company reported in (2011) 2 SCC 74, it is held by the Hon ble Supreme Court that a promotional notification should be liberally construed, this is the special rule. In this case, the Board has acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed beyond 60 days from the end of the relevant quarter during which the said goods have been exported as stipulated in the said notification. Accordingly, the adjudicating authority has rightly rejected the refund claim amounting to Rs.56,71,926/-. He cited the decision of the Hon'ble Apex Court in the case of UOI Vs Uttam Steel Ltd, wherein it has been held that a dead claim cannot be revived by a subsequent amendment in the Notification. It is an undisputed fact that the refund claim was filed beyond the 60 days as stipulated in the notification 41/2007-ST well before the amendment on 18-11-2008. Hence, it was a dead claim which cannot be revived as per the decision of the Hon'ble Supreme Court cited above. Accordingly, he prayed for setting aside the impugned order passed by Commissioner (Appeals), which allowed the refund. 6. Heard both sides and perused the appeal records. 7. From the facts on record, we observe that the respondent filed a refund claim of service tax amounting to Rs.2,86,25,465/- under Notification No.41/2007-S.T dated 06-10-2007, for the quarter ending January 2008 to March 2008. The Deputy Commissioner sanctioned refund of Rs.1,22,53,754/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 60 days from the end of quarter to six month; (ii) to omit the condition of non-availment of drawback. Whether, in view of amended conditions, refund for the quarter Mar- June, 08 would be allowed to be filed till Dec.,08? It is clarified that consequent upon revision of limitation period, any refund claim that is filed within such revised limitation period would be admissible if it is otherwise in order. Therefore, refund claims of service tax on specified taxable services used for exports of goods made in the quarter Mar-June, 08 could be filed till 31st December, 08. 12. From the Notification No.32/2008-ST dated 18-11-2008 cited above, we observe that the notification has extended the time limit for filing of refund claims under Notification 41/2007 dated 06.10.2007, from 60 days to 6 months. Board Circular No.112/6/2009-ST dated 12-03-2009 has clarified the doubts with specific examples. The Circular categorically states that in view of the extended time limit, the refund claim for the quarter March-June 2008 can be filed till 31st December 2008. In the present case, the Appellant has filed the refund for the quarter January 2008 to Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
