2017 (3) TMI 422

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....spondent in terms of Notification 41/2007-ST dated 06/10/2007. The respondent filed claim for refund of service tax amounting to Rs. 1,04,226/- on 06/02/2009 with reference to goods exported during the quarter April 2008 to June 2008. The Original Authority rejected the claim on the question of time bar as the claim has been filed after six months of the relevant date. On appeal, the Commissioner (Appeals) vide the impugned order held that the condition of limitation mentioned in the notification is only procedural and since the claim has been filed within one year, the period allowed in terms of Section 11B of Central Excise Act, 1944, the same should be allowed. 2. The Revenue contested the finding in the impugned order on the ground t....

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....e that there is a cross appeal by respondent filed on 28/09/2016. The Department's appeal was filed in 2010. The respondent submits that there is a change of management and the connected papers could not be traced. We note that there is a long delay of 6 years in filing the cross appeal. No request for condonation of delay also has been filed. During the course of argument, the learned Counsel for the respondent mainly contested appeal by Revenue, on merits. 6. We have heard both the sides and perused the appeal records. The only dispute in the present appeal is the applicability of time limit for filing claim under Notification 41/2007-ST. The said notification is an exemption notification issued in terms of Section 93 (1) of Finance Ac....

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.... one year for filing refund claim. We note that in the present case the claim was filed in February 2009 much before the issue Notification 17/2009-ST dated 07/07/2009. Similarly, in Gran Overseas Ltd. vs. CCE, Delhi - I reported in 2016 - TIOL - 3373 (Cestat - Del.), the Tribunal relied on earlier decision in Chandrashekhar Exports (supra) which relied on Raymond Ltd. (supra). The reference is to applicability of Notification 17/2009. In Bandedkar Brothers Pvt. Ltd. vs. CCE, Goa reported in 2015 - TIOL - 2485 - CESTAT - MUMBAI, the Tribunal examined the scope of amending Notification 32/2008-ST which substituted "six months" in place of "60 days" for filing claim under Notification 41/2007. Further, we note that reference was made regardin....

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..... Ltd. vs. CCE, Indore reported in 2016 (41) S.T.R. 125 (Tri. - Del.), it was held that the exemption available will be only on fulfillment of conditions prescribed therein. The Tribunal held that Notification 41/2007 is available only on fulfillment of condition including filing of claim within time limit prescribed therein. The Tribunal noted that this is an exemption notification and not a refund within the scope of Section 11B. Similar ratio was adopted in Spark Engineering P. Ltd. vs. CCE, Ghaziabad reported in 2013 (31) S.T.R. 71 (Tri. - Del.), in Calcutta Export Company vs. CCE, Kolkata - II reported in 2016 (44) S.T.R. 672 (Tri. - Kolkata), Sakay Overseas vs. CCE, Ludhiana reported in 2014 (33) S.T.R. 456 (Tri. - Del.) and H.R. Inte....