TaxTMI 
TaxTMI 
2020 (4) TMI 81
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the records that the Appellant had been exporting Gold Jewellery and Gold Medallion during the period from 1 April, 2013 to 31 March, 2015. The Appellant did not make a declaration in the shipping bills regarding its intention to claim refund of service tax in terms of paragraph 2 of the notification dated 29 June, 2019 that gave an option to claim rebate of service tax paid on the taxable services by way of refund of service tax either under paragraph 2 or under paragraph 3 of the said notification. It is for this reason that the Appellant sought an amendment in the 32 shipping bills for stating therein that it should be granted rebate by way of refund of service tax paid on the specified services in terms of paragraph 2 of the notification. 3. The Adjudicating Authority rejected the request made by the Appellant for making amendment in the shipping bills on the ground that the Appellant had failed to provide any documentary evidence, as was required under section 149 of the Customs Act. The relevant portion of the order dated 3 July, 2017 passed by the Assistant Commissioner rejecting the request of the Appellant is reproduced below:- "2. The Exporter although has su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rder dated 6 June, 2019 passed by the Commissioner (Appeals) is reproduced below: "5.6 To avail option of rebate of Service Tax as per Para 2 of Notification, it is clearly stipulated that the exporter SHALL makes a declaration in the electronic Shipping Bills or Bill of Export, while presenting the same to the proper officer of Customs. Besides, rebate is to be granted for Service Tax paid on the specified services, as a percentage of FOB value of exports goods. It signifies that the exporter is to establish that it has received the services, paid the Service Tax on such services and used the said services in export of goods. Then only rebate is allowable. The opening paragraph of Notification also mentions ".....................hereby grants rebate of Service Tax paid on the taxable services received by an exporter of goods and used for export of goods................". Thus, documentary evidence about receiving, using of services and Service Tax paid on such services is a pre-condition to grant rebate. Clause 2(d) (iii) also lays down that conditions of the Notification have to be fulfilled. 5.7 In the application dated 14.3.2017, the appellant exporter has not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pellant is entitled to take benefit of Service Tax Rebate under Para 2 of the Notification No. 41/2012-ST dated 29.06.2012. 5.11 The appellant submitted written submissions during Personal hearing on 09.03.2018, wherein it is claimed that the appellant, having paid service tax on the various services used for expert of gold jewellery and medallions were eligible for refund of Service Tax @ 0.06%, of FOB value of exports in terms of Para 2 of Notification No. 41/2012-ST and Circular dated 16.12.2011. 5.12 Thus, it is evident that the appellant have failed to submit any documentary evidence to establish their claim that they had paid Service Tax on services received and used for export of goods. It is pertinent to mention that, the Notification no. 41/2012-ST was issued to grant Service Tax Refund or rebate for service tax paid on specified services, used in export. Basic pre-requisite is tax paid on services, which is to be refunded. It means that, if no service tax is paid, where is the question of granting refund/rebate in terms of Notification 41/2012-ST." 5. It is this order dated 19 June, 2019 passed by the Commissioner (Appeals), that has been assailed in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....us be seen that the proper officer may in his discretion, authorize any document, after it has been presented in the custom house to be amended. However, no amendment of a shipping bill shall be so authorized to be amended after the export goods have exported, except on the basis of documentary evidence which was in existences at the time when the goods were exported. The Appellant had come out with a categorical case that evidence/information contemplated under paragraph 2 of the time notification dated 29 June, 2012 was in existence at the relevant time and in fact had been submitted by the Appellant with the shipping bills at the time the goods were exported. The Appellant desired the amendment to claim rebate of service tax paid by way of refund under paragraph 2 of the notification dated 29 June, 2012. 11. It would, therefore, be necessary to reproduce the relevant portion of the notification dated 29 June, 2012. It is as follows:- "In exercise of the powers conferred by section 93A of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act) and in supersession of the notification of the Government of India in the Ministry of Finance (Department....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le; (ii) no further rebate shall be claimed in respect of the specified services, under procedure specified in paragraph 3 or in any other manner, including on the ground that the rebate obtained is less than the service tax paid on the specified services; (iii) conditions of the notification have been fulfilled; (e) service tax paid on the specified services eligible for rebate under this notification, shall be calculated by applying the rate prescribed for goods of a class or description, in the Schedule, as a percentage of the FOB value of the said goods; (f) amount so calculated as rebate shall be deposited in the bank account of the exporter; (g) shipping bill or bill of export on which rebate has been claimed on the basis of rate specified in the Schedule, by way of procedure specified in this paragraph, shall not be used for rebate claim on the basis of documents, specified in paragraph 3; (h) where the rebate involved in a shipping bill or bill of export is less than rupees fifty, the same shall not be allowed; (3) the rebate shall be claimed in the following manner, namely:- (a) rebate may be claimed o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anted by way of refund of service tax and that the rebate shall be claimed either on the basis of the rates specified in the Schedule of rates as per the procedure specified in paragraph 2 of the notification or on the basis of documents as per the procedure specified in paragraph 3 of the notification. 13. The procedures provided for in paragraph 2 and paragraph 3 of the aforesaid notification are different. Under paragraph 2, rebate is claimed on the basis of the rates mentioned in the Schedule, while in paragraph 3 rebate is claimed on the basis of documents to be produced. In the instant case the Appellant had sought amendment in the shipping bills by claiming rebate on the basis of rates specified in the Schedule as provided for in paragraph 2 of the notification and not on the basis of paragraph 3 of the notification, for which documents were required to be produced. 14. Paragraph 2 of the notification provides for the manner in which the rebate has to be claimed. The manufacturer-exporter has to register his Central Excise registration number and bank account number with the customs. If he is not so registered, he shall register his service tax code number and bank acc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d a declaration to be made in the shipping bills regarding the intention to claim rebate either under paragraph 2 or paragraph 3 of the notification. The appellant had not indicated the said declaration and it is this declaration that was sought to be submitted in the shipping bills through the amendment sought by the Appellant. Neither the Adjudicating Authority nor the Commissioner (Appeals) have mentioned about any requirement of paragraph 2 of the notification not having been met by the Appellant. For applicability of section 149 of the Customs Act relating to amendment of documents, all that has to be seen is that documentary evidence should have been in existence at the time the goods were exported. There is no document which was not in existence at the time the goods were exported for the simple reason that all the Appellant was claiming by the amendment was incorporation of the declaration that the Appellant intended to avail the rebate under paragraph 2 of the notification. Under paragraph 2 of the notification all that has to be seen for calculation of the rebate is the schedule. The documents mentioned in the order of the Commissioner (Appeals) were not required to be ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 149 of the Customs Act are as follows: "3. We have heard the learned counsel for the parties. We are of the view that what the petitioner is seeking is an amendment of the Bill of Entry which is permissible under Section 149 of the Customs Act, 1962 even after the goods have been cleared for home consumption provided the said amendment is based on documentary evidence which was in existence at the time when the goods were cleared. According to the learned counsel for the petitioner, the said notification was in existence at that point of time. Consequently, we are of the view that this is a clear case where the petitioner could avail of the provisions of Section 149 of the Customs Act, 1962 and we, therefore, direct him to move an application before the proper officer seeking amendment of the Bill of Entry in terms of Section 149." 21. In Share Medical Care vs. Union of India 2007 (209) ELT 321 (SC), the Supreme Court observed that even if an applicant claims exemption under category 2 of an exemption notification which was granted it would not mean that the applicant cannot later claim exemption under category 3 of the exemption notification after seeking cancellat....