2023 (6) TMI 369 - AT - Service Tax

Tribunal upholds appellant's refund claims under Notification No 41/2012-ST despite GST introduction. Accrued rights protected.

The Tribunal allowed the appeal, upholding the appellant's right to refund claims under Notification No 41/2012-ST despite the introduction of the GST ... Refund claim - Denial of benefit accrued to assessee under the service tax before introduction of GST - provision of time of supply of goods is applicable under Section 12 of CGST Act, 2017 for export of goods during the period of October to December 2017 or not - applicability of Section 16 of the IGST Act, GST in India on exports - N/N. 41/2012-ST dated 29.06.2012 ceases to be applicable from 01.07.2017 - HELD THAT:- The notification do not provide for any limitation on the period in which the goods have to be exported from the date of receipt of the input service on the payment of service tax. Impugned order do not analyze the notification in dispute but have misdirected himself by going into the transitional provisions as per the Central Goods and Service Tax Act, 2017. From the plain wording of the notification it is evident that the right to claim the rebate has accrued to the appellant (exporter) on the date of payment of the service tax on input services received by him for use in the export of goods. Assistant Commissioner has in para 5 (iii) recorded a specific finding in this regard which was not disputed by the revenue in their appeal before the Commissioner (Appeal) nor Commissioner (Appeal) has recorded any finding to this effect. In the case of EICHER MOTORS LTD. VERSUS UNION OF INDIA [1999 (1) TMI 34 - SUPREME COURT], Hon’ble Apex Court observed a right accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility available thereto gets worked out or until those goods existed. Therefore, it becomes clear that Section 37 of the Act does not enable the authorities concerned to make a rule which is impugned herein and, therefore, we may have no hesitation to hold that the Rule cannot be applied to the goods manufactured prior to 16-3-1995 on which duty had been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods. In case of COLLECTOR OF CENTRAL EXCISE, PUNE VERSUS DAI ICHI KARKARIA LTD. [1999 (8) TMI 920 - SUPREME COURT] Hon’ble Supreme Court has category held that It should also be noted that there is no co-relation of the raw material and the final product; that is to say, it is not as if credit can be taken only on a final product that is manufactured out of the particular raw material to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available. Same view has been expressed as per the Section 173 and 174 (2) of the Central Goods and Service Tax Act, 1994 while repealing the Chapter V of The Finance Act, 1994. The observation made by the Commissioner (Appeal) in respect of the provisions of Section 173 of The Central Goods and Service Tax Act, 2017, are in respect of the repeal of notification 41/2012-ST without even referring to the Section1 74 (2) ibid, cannot impact the rights accrued to the appellant prior to such repeal - As is evident from the wording of the notification and the decision of the Hon’ble Supreme Court the right to rebate has accrued to the appellant at the time of the receipt of the specified input services for use in the export of goods by the exporter, and such right could not have been extinguished by the subsequent event of repeal of Chapter V of the Finance Act, 1994. Appeal allowed. Issues Involved:1. Applicability of Notification No 41/2012-ST dated 29.06.2012 post-GST regime.2. Admissibility of refund claims under the repealed notification.3. Impact of transitional provisions under the CGST Act, 2017 on accrued rights.4. Compliance with procedural and substantive requirements for refund claims.Issue-wise Detailed Analysis:1. Applicability of Notification No 41/2012-ST dated 29.06.2012 post-GST regime:The appellant filed refund claims based on Notification No 41/2012-ST, which provided a rebate of service tax paid on specified services used for the export of goods. The Assistant Commissioner sanctioned the refund, but the Revenue challenged it, arguing that the notification ceased to be applicable from 01.07.2017, with the introduction of the GST regime. The Commissioner (Appeals) set aside the Assistant Commissioner's order, stating that the refund claims were not maintainable under the repealed notification.2. Admissibility of refund claims under the repealed notification:The appellant contended that the right to rebate/refund accrued under the existing law (Chapter V of the Finance Act, 1994) and should not be affected by the introduction of the GST regime. The Assistant Commissioner found that the refund claims were filed within the stipulated time and that the services in question were used for the export of goods, thus satisfying the conditions of the notification. The Tribunal noted that the notification created a complete code for rebate claims, including the manner of claiming and processing the refund, without any limitation on the period between the receipt of input services and the export of goods.3. Impact of transitional provisions under the CGST Act, 2017 on accrued rights:The Commissioner (Appeals) misdirected by focusing on the transitional provisions of the CGST Act, 2017, rather than the notification in dispute. The Tribunal emphasized that the right to claim a rebate accrued when the service tax was paid on input services, as supported by the Supreme Court's decisions in Eicher Motors Ltd. and Dai Ichi Karkaria. Section 174 of the CGST Act, 2017, ensures that the repeal of the Finance Act, 1994, does not affect rights, privileges, obligations, or liabilities acquired or accrued under the repealed Act.4. Compliance with procedural and substantive requirements for refund claims:The Assistant Commissioner confirmed that the refund claims were complete, certified, and arithmetically accurate. The appellant had not taken CENVAT credit of the service tax paid and had complied with all conditions of the notification. The Tribunal found that the Commissioner (Appeals) did not dispute these findings and failed to consider the notification's provisions adequately.Conclusion:The Tribunal allowed the appeal, setting aside the impugned order and upholding the appellant's right to the refund claims under Notification No 41/2012-ST. The Tribunal emphasized that the accrued right to rebate could not be extinguished by the subsequent repeal of the Finance Act, 1994, and the introduction of the GST regime. The appeal was pronounced in the open court.