2013 (8) TMI 254

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....x Registration No.AALFS7861GST0011 and are engaged in the export of leather goods. They had filed their claim for refund of Service Tax of Rs.3,4,806/- under Notification No.41/07/ST dated 06.10.07 on 29.09.2010 pertaining to the period 1.1.2009 to 31.03.2009 in accordance with the provision laid down in para 2 (e) of the Notification No 41/07-ST dated 06.10.2007. The refund claim is on account of the service tax paid under the Business Auxiliary Services provided by the commission agent located outside India/ foreign agents. 3. During the scrutiny of refund claim of Rs. 3,40,816/- it transpired that the refund claim pertained to quarter ending March 2009 filed on 29.09.2009, while the claim of Rs. 3,21,953/- on account of commission pai....

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....eceived towards the value of taxable services. 5. He submitted a chart stating that they have paid the commission to their overseas agent on 12.01.2009 and thereafter paid the service tax on 21.03.2009 for the exports made during July 2008 to October 2008. According to him the date of the payment of service tax is crucial for claiming the refund. Accordingly they had filed the refund within the quarter ending date of the payment of service tax. Sr. Shipping Bill No. Shipping Bill Date Date of Realisation of export proceeds as per BRC Date of Commission paid to Overseas Agents Amount of Commission Service Tax deposited Date under Reverse Charges Method under Rule 6 Service Tax Refund Claim Filed Date 1 109132....

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....ax on business auxiliary service at Sl.15 and a condition has also incorporated. The relevant para of Notification No.41/2007 is as under:-    2 (e) the claim for refund shall be filed on a quarterly basis, within sixty days from the end of the relevant quarter during which the said goods have been exported: Provided that the said goods shall be deemed to have been exported on the date on which the proper officer of Customs makes an order permitting clearance and loading of the said goods for exportation under section 51 of the Customs Act, 1962 (52 of 1962); 7. DR also points out that the judgement of CESTAT in the case of Spark Engg. P. Ltd. vs. Commissioner of Central Excise, Ghaziabad in which similar issue came for cons....

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....he parameters of the excise laws. Though I find that refund claims could not be filed within the said period as no duty deposits were made by the appellant but as held by various courts, the Tribunal acting within the framework of the act/rules/notifications cannot introduce any provision of the same. As such the period prescribed in the Notification cannot be extended on the ground of the impossibilities of adherence to the same. The appellant could have deposited the said service tax will within time and could have failed refund claim of the same within the period prescribed under Notification. Having not done so, I find no merits in the appellants claim to extend the limitation period by artificially considering the date of deposits as t....