Commissioner of C. Ex. and Cus. vs ABG Shipyard Ltd.

V.M. Sahai, J.—We have heard Mr. Gaurang H. Bhatt, learned counsel appearing for the appellant-Department in this Tax Appeal on the following proposed question of law.

Whether the learned Tribunal is justified in the eye of law, in the facts and circumstances of the case, in holding that the non-fulfillment of the conditions laid down under Notification No. 41/2007-S.T., dated 6-10-2007, as amended vide Notification No. 17/2008-S.T., dated 1-4-2008 will not bar the claim of the refund of the tax, even for the services rendered prior to amendment vide Notification No. 17/2008-S.T., dated 1-4-2008 nor it will come in the way for granting of the refund of the tax to the assessee, in terms of the Notification No. 17/2008-S.T., dated 1-4-2008?

After hearing the learned counsel for the appellant, we are of the opinion that no doubt. Section 65(105)(zzb) of the Notification No. 17/2008-S.T., dated 1-4-2008 provides that exporters was declaring the amount of commission paid or payable to the commission agent in the shipping bill and admittedly, there was no such declaration made by the exporter in the shipping bill. But the amount of commission paid to the commission agent has already been deposited within time by me exporter and he has prayed that this technical error may be condoned. Since there was no effort to defraud the respondent and the amount of commission was already deposited, therefore, the assessee will be entitled for refund in terms of amended Notification No. 17/2008-S.T., dated 1-4-2008 and mere mentioning in the shipping bill by the exporter would not disentitle him to claim refund.

For the aforesaid reason, we do not find any substantial question of law in this Tax Appeal. This Appeal is accordingly dismissed. As a consequence, Civil Application is also dismissed.