2016 (7) TMI 1078 - AT - Service Tax

Exporter's Appeal for Service Tax Rebate Allowed Based on Date of Shipment

M/s. Ashok Granites Ltd. Versus CCE & ST, Salem

The Tribunal allowed the exporter's appeal for rebate of service tax paid on specified services used for export of goods. It held that the date of export ... Refund - Period of limitation - relevant date - Claim of rebate of service tax paid on specified services used for export of goods under Notification No. 41/2012 ST dated 29.06.2012 - Held that:- the claims submitted by the appellants were scrutinized thoroughly as per the para 3 (g) of Notification No. 41/2012-ST and he has taken the date of let export order issued by the proper officer as the relevant date to come to the conclusion that the refunds are hit by time bar aspect. Held that:- 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 expropriatory 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. Sub-ordinate 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. - Refund allowed - Decided in favor of assessee. Issues:1. Claim for rebate of service tax paid on specified services used for export of goods.2. Time limit for filing rebate claims under Notification No. 41/2012-ST.3. Interpretation of the date of export concerning the date of shipment or let export order.4. Application of Section 11B of the Central Excise Act, 1944 to service tax.5. Adjudication of refund claims by the authorities.Detailed Analysis:Issue 1: Claim for Rebate of Service TaxThe appellant, an exporter of granites, claimed rebate of service tax paid on specified services used for export of goods under Notification No. 41/2012 ST. The claims were made for different periods, and the Asst. Commissioner granted refund of certain amounts while rejecting the remaining amounts.Issue 2: Time Limit for Filing Rebate ClaimsThe main contention revolved around the time limit for filing rebate claims as per Notification No. 41/2012-ST, which states that the claim shall be filed within one year from the date of export of the goods. The authorities rejected certain claims as time-barred based on this criterion.Issue 3: Interpretation of Date of ExportThe appellant argued that the date of export should be considered as the date of shipment, not the date of the let export order. They supported their argument by referring to the relevant provisions of the Customs Act and the Notification, emphasizing that the date of export is when the goods are permitted for clearance and loading for exportation.Issue 4: Application of Section 11B of Central Excise ActThe appellant relied on Section 11B of the Central Excise Act, which has been made applicable to service tax, to support their interpretation of the time limit for filing refund claims. They argued that the date of export should be determined from the date of shipment, as per the relevant legal provisions.Issue 5: Adjudication of Refund ClaimsThe Ld. Commissioner (Appeals) upheld the rejection of refund claims by the authorities, citing the time limit prescribed in the Notification. However, the Tribunal, after considering the arguments and legal provisions presented by both parties, allowed the appeal of the appellant, stating that the appellant was legally entitled to the refund claim based on the interpretation of the date of export and the relevant legal provisions.In conclusion, the Tribunal's judgment favored the appellant's interpretation of the date of export and the applicable legal provisions, granting them the refund claim and providing consequential relief in accordance with the law.