AI Structured Summary
Not yet generated for this judgment
Judgment
The short point that arises for consideration is, “whether the revised claim for refund made by the appellant is hit by limitation?â€
2.1 Shri M.N. Bharathi, Learned Advocate appearing for the appellant, seriously contended, inter alia, that the appellant had filed rebate claim for the
Service Tax paid on the Airport Services utilized towards export of goods; the first claim for the refund of Rs.43,01,324/- was made on 30.03.2017
and thereafter, a revised claim for refund of Rs.1,17,06,030/- based on subsequent payment made to the service provider was made on 21.08.2017;
that a Show Cause Notice dated 22.12.2017 was issued proposing to reject an amount of such Swachh Bharat Cess claimed by the appellant; that
thereafter, Order-in-Original No. 19/2018-(R) dated 23.03.2018 was passed, confirming the proposal made in the Show Cause Notice and rejecting
the claim of Swachh Bharat Cess; that Review Appeal was filed by the Revenue before the First Appellate Authority contending that a part of the
appellant’s claim was technically hit by the period of limitation in terms of paragraph 3(g) of Notification No. 41/2012-ST dated 29.06.2012 which
aspect was omitted to be considered by the Adjudicating Authority; that thereafter, the appellant also filed its cross-objection before the First
Appellate Authority; that after hearing, the First Appellate Authority, vide impugned Order-in-Appeal No. 574/2018 (CTA-I) dated 23.10.2018,
allowed the Department’s appeal and thereby rejected the refund claim to the extent of Rs.27,57,930/- pertaining to the intervening period from
01.04.2016 to 22.08.2016, as time-barred, etc.
2.2 He contended that the impugned review order being not in accordance with law, the present appeal has been filed before this forum.
2.3 He also filed written submissions and relied on the following decisions:
(i) M/s. Petronet Lng Ltd. v. Commr. of Central Excise, Delhi-I [2017 (7) G.S.T.L. 54 (Tri. â€" Del.)];
(ii) M/s. Indian Oil Corporation Ltd. v. Commr. of C.Ex., Haldia [2008 (229) E.L.T. 599 (Tri. â€" Kol.)];
(iii) M/s. Facit Asia Ltd. v. Collector of Central Excise, Coimbatore [2003 (161) E.L.T. 1003 (Tri. â€" Chennai)];
(iv) M/s. Raymond Ltd. v. Commr. of C.Ex. and Cus., Nasik [2005 (192) E.L.T. 514 (Tri. â€" Mum.)];
(v) Commr. of Cus. & C.Ex., Goa v. M/s. Kodak India Ltd. [2009 (243) E.L.T. 629 (Tri. â€" Mum.)];
(vi) M/s. Helly Healthcare Pvt. Ltd. v. Commr. of C.Ex., Ahmedabad [2013 (295) E.L.T. 296 (Tri. â€" Ahmd.)];
(vii) Commr. of C.Ex., Chennai-I v. M/s. Indian Oil Corporation [2017 (354) E.L.T. 585 (Mad.)]
2.4 He also further submitted that he is raising a fresh legal ground for the first time before this forum that the Reviewing Authority having traversed
beyond the scope of the Show Cause Notice, the rejection of refund/rebate claim as also the impugned order are liable to be set aside.
3.1 Per contra, Shri L. Nandakumar, Learned Departmental Representative appearing for the Revenue, supported the impugned order. In support, he
also relied on the following decisions:
(i) M/s. Timblo Drydrocks Pvt. Ltd. v. Commr. of Cus. & C.Ex., Goa [2019 (29) G.S.T.L. 497 (Tri. â€" Mum.)];
(ii) M/s. Asian Paints (India) Ltd. v. Collector of Central Excise, Bombay [2002 (142) E.L.T. 522 (S.C.)];
(iii) Collector of Central Excise, Bombay v. M/s. Power Build Ltd. [1987 (31) E.L.T. 78 (Tribunal)]
3.2 He concluded his arguments requesting for sustenance of the impugned order.
In rejoinder, Learned Advocate for the appellant filed an additional synopsis, which is also taken on record.
I have heard the rival contentions, gone through the documents placed on record as well as the various decisions/orders relied on by the parties.
Facts are not in dispute. Admittedly, the denial of refund by the First Appellate Authority pertains to the period from 01.04.2016 to 22.08.2016 and it
is the case of the Revenue that the refund claim for this period was clearly made after a lapse of ONE year and hence hit by limitation in terms of
paragraph 3(g) of the Notification ibid.
7.1 This Bench of the Tribunal, in the case of M/s. Ashok Granites Ltd. v. Commissioner of Central Excise & Service Tax, Salem reported in 2016
(46) S.T.R. 875 (Tri. â€" Chennai), under almost similar facts, has held as under:
“4. …
It is seen that in the definition of “relevant date†u/s. 11B, there is a mention that if the goods are exported by sea or air, the date on
which the ship or the aircraft in which such goods are loaded leaves India but on the other hand the notification states that the date of
export shall be the date on which the Let export order is given. If a limitation period is sought to be imposed in respect of refund claims, it
must be introduced by legislation, given the expropriatary consequences of such a limitation period. There is a body of law that essential
legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate legislation. The
parent enactment must clearly impose such obligations. Subordinate legislation cannot prevail or be made in such cases. The imposition of
period of limitation, without statutory amendment, through a notification, therefore, cannot prevail. The Jain Irrigation case is inapplicable
to the facts of the present case as what was decided in the said case was as to what was ‘the place of removal’ which is not the case
herein. In view of my above discussions, I am of the view that the appellant is correctly and legally entitled for the refund claim. I therefore,
allow the appeal of the appellant with consequential relief, if any, in accordance with law.â€
7.2 In one of the recent Orders of the Mumbai Bench of the Tribunal relied upon by the Learned Departmental Representative, in the case of M/s.
Timblo Drydrocks Pvt. Ltd. (supra), the Bench has held as under:
“4. We find that the Tribunal in, re Bharat Heavy Electricals Ltd., has laid down the principle that
‘12. The Notification No. 41/2012-S.T. has been issued in terms of Section 93A of the Finance Act, 1994. The notification provides for
grant of rebate by way of refund of the service tax paid on the specified services used for export of goods. It is nobody’s case that the
GTA services for which the appellant has claimed rebate of service tax under the notification has not been used for export of goods.
Consequently, there is no doubt that the appellant falls within the gamut of the notification whose stated purpose is to grant refund of
service tax on services used for export. In terms of the decisions of the Hon’ble Supreme Court cited above, once it is determined by
strict means that the appellant will be eligible for the benefit of the notification, it is necessary to interpret the wording of the notification so
as to achieve the purpose and object for which the notification has been issued. Apex Court in the case of CCE v. Malwa Industries (supra)
has held as under :
“20. We, as noticed hereinbefore, have no quarrel with the proposition that exemption notification should be construed strictly which
means that benefit thereof should not be granted to one, who is not entitled therefor. But it is also true that those who are entitled to the
benefit cannot be deprived therefrom by taking recourse to the doctrine of narrow interpretation simplicitor, although the purpose and
object thereof would be defeated thereby.â€
If the view taken by the authorities below were to be upheld, the person such as the appellant, who has exported the goods and used certain
services for the same, and for whose benefit the Notification No. 41/2012-S.T. has been issued in the first place, will not get the benefit. A
literal interpretation of Clause 3(b) would deny such refunds, in all those cases where the exporter has paid service tax on reverse charge
basis. Such an interpretation would also render the notification to be useless in all such reverse charge cases. Clearly this cannot be the
intention of the Govt. in issuing the notification.’
Furthermore, it is also inconceivable that a special provision for discharge of tax liability by the recipient, which may not have been
anticipated when the general scheme of rebate was devised, should stand in the way of the more fundamental principle that taxes should not
be allowed to insinuate into the value of exports.â€
The above view clearly supports the case of the assessee rather than supporting the view of the revenue.
In view of the above, denial of refund on the ground of time-limit is not in order and therefore, the impugned order is set aside.
The appeal stands allowed with consequential benefits, if any, as per law.
(Order pronounced in the open court on 01.07.2021)