TaxTMI 
TaxTMI 
2019 (10) TMI 764
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....use Agent Service; (iv) Technical Inspection and Certification service. 3. The appellant claims to have paid service tax on the aforesaid services but the appellant could not take the credit of input services as it is engaged only in export. The appellant, however, filed a claim for refund in terms of a notification dated 7 July 2009. The said notification was issued in exercise of the powers conferred under Section 93(1) of the Finance Act, 1994, in supersession of the earlier Notification No. 41/2007 dated 6 October, 2007. The relevant portion of the notification is reproduced below: "In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act) and in supersession of the Government of India in the Ministry of Finance (Department of Revenue) notification No. 41/2007-Service Tax, dated the 6th October, 2007, published in the Gazette of India, Extraordinary, vide number G.S.R. 645(E), dated the 6th October, 2007, except as respects things done or omitted to be done before such supersession, the Central Government, on being satisfied that it is necessary in the public interest....
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....a procedural lapse and should have been condoned once it was found as a fact that the appellant was eligible for refund. In support of this contention, learned Counsel placed reliance on the decision of the Mumbai Tribunal in Commissioner of Central Excise, Pune Vs. Chandrashekhar Export 2015-TIOL-2448-CESTAT-MUM 6. The learned Authorised Representative of the Department has, however, submitted that the claim for refund has to be filed within one year from the date of export of the goods and, therefore, the Commissioner (Appeals) committed no illegality in disallowing such refunds made for a period beyond one year from the date of export of goods. In support of this contention, learned Authorised Representative has placed reliance upon a decision of the Gujarat High Court in Patel Construction Company Vs. Assistant Commissioner of Service Tax 2017(50) STR 257(Guj.), and decisions of the Tribunal in Commissioner of Central Excise, Indore Vs. K.S. Oils Ltd. 2017 (52) STR 261 (Tri.-Del.) -and Salora International Ltd. Vs. Commissioner of Service Tax, Delhi 2017 (47) STR 177 (Tri.-Del.). 7. The appellant is an exporter engaged in export of items such as Maize, Cotton, Coffee and ....
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....ned by the Gujarat High Court in Patel Construction Company, though in connection with the provisions of Section 11B of the Central Excise Act, 1944. The Court observed that no relief can be granted contrary to the statute and, therefore, no direction can be issued to an Authority to condone the delay in filing the refund application. In K.S Oils Limited, the application was filed claiming refund in terms of Notification No. 41/2007 dated 6 October, 2007, which notification, as noticed above, had been superseded by the subsequent notification bearing No. 17/2009 dated 7 July, 2009. The provisions relating to claim of refund are identical in both the notifications as the claim for refund has to be filed within one year from the date of export of the said goods. The Tribunal, after considering various decisions of the High Court and the Tribunal, observed that the time limit specified in the notification to file a claim for refund has to be adhered to, since there is no provision to extend the said time limit. The observations are as follows: "6. We have heard both the sides and perused the appeal records. The only dispute in the present appeal is the applicability of tim....
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....made regarding applicability of provisions of Section 11B being a substantive provision of Act which will prevail on notification which is only supplementary. We find the notification has no reference to Section 11B. This is an exemption notification issued under Section 93(1). The procedure to claim exemption is post facto, by way of a refund with binding conditions. Non-fulfilment of any one of the conditions will put the claim for notification in jeopardy. 8. We have also referred to the cases relied upon by the Revenue to state that the time limit mentioned in the notification cannot be ignored by the sanctioning authority. In Principal Commissioner of S.T. v. R.R. Global Enterprises Pvt. Ltd. reported in 2016 (45) S.T.R. 5 (A.P.), the Hon'ble High Court at Hyderabad held that :- "45. Once a full-fledged system is put in place, for the exercise of discretion, the compliance with the requirements of such a system alone will remove any kind of arbitrary exercise of power. The Courts are obliged to interpret notifications of this nature, in such a manner that the power of discretion is reduced to the minimum." 9. The Hon'ble High Court was examining the ....