TaxTMI 
TaxTMI 
2023 (5) TMI 762
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....ication S No Period Date of Filing Amount (Rs) 1 July 17-Sept 17 29.06.2018 18,54,484/- 2 Oct 17-Dec 17 25.09.2018 1,75,251/- Total 20,29,735/- 2.2 For brevity sake, we are referring to order-in-original No. CGST/ME/DN-IV/Refund/AC/S.Vinodkumar/59/2018 dated 26.02.2019, by which the said refund claims were adjudged by the Assistant Commissioner stating as follows:- "7. I hereby sanction refund amount of Rs.17,93,395/- (Rupees Seventeen Lakh Ninety Three Thousand Three Hundred and Ninety Five only) and reject the amount of Rs.61,089/- (Rupees Sixty One Thousand and Eighty Nine only), under Section 93A of the chapter V of the Finance Act, 1994 read with the provisions of Notification No.41/2012-ST dated 29.06.2012, as amended." 2.3 Revenue challenged the above order before Commissioner (Appeals) on the following grounds: i. The provision of Notification No 41/2012-ST dated 29.06.2012 ceases to be applicable from 01.07.2017. ii. The 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 20017. ....
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....service to its provider; (b) Refund shall be claimed by the exporter for the specified service received and used by him for export of the said goods; (c) Exporter claiming the rebate has actually paid the service tax on the specified service to its provider; (d) No CENVAT credit of service tax paid on the specified service used for export of said goods has been taken under the CENVAT Credit Rules, 2004; (e) Claim for refund shall be filed within one year from the date of export of the said goods. (f) Rebate being claimed in this case is not a unit or developer of a Special Economic Zone. ii) Details of the LEO dates for process of their claims after adjustment of withdrawal amount are as under: Sr. No. Period Date of filing claim Total refund claimed First LEO date of the period Total eligible refund claimed 1 July, 2017 to September 29.06.2018 18,54,484 02.08.2017 17,93,395 (i) From the above table, it is clear that all the refund claims have been filed within the stipulated time period of one year as specified in the said Notification. iii) The said claimant has claimed ref....
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....2012-ST dated 29.06.2012 that rebate under procedure specified in paragraph 3 shall not be claimed wherever difference between amount of rebate under procedure specified in paragraph 2 and paragraph 3 is less than twenty per cent of the rebate available under the procedure specified in paragraph 2. From the above, the amount of rebate claimed as per documents is showing less than the specified schedule rate (0.07%). Thus the claimant is the condition mentioned in Para No. 1(c) of Notification No. 41/2012-ST dated 29.06.2012, as amended. vi) It is further seen that the question of unjust enrichment does not arise, since the rebate is granted to the exporter of goods by virtue of Notification No. 41/2012-ST dated 29.06 2012, as amended, which is in the form of refund of Service Tax paid on specified input services which are received and used by the exporter in relation to the goods exported and has not received electronic rebate of Service Tax from customs on the shipping bills on which refund is claimed on the basis of procedure prescribed in paragraph 2 of the said Notification. The claimant has filed Refund Claims in Form A-1, as specified under Paragraph 3 of the said No....
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.... claimant is eligible for refund of Rs. 17,93,395/- in respect of the subject claim. Accordingly, I pass the following order." 6. In view of the above findings, the assessee is eligible for refund of Rs. 19,30,237/- in respect of the above claim. Accordingly, I pass the following order." 4.3 For setting aside the order of original authority impugned order records as follows: "7. Considering the rival contentions on records, I find that the issue to be decided in the instant appeal is whether the Respondent has rightly claimed the refund under the provisions of Notification No. 41/2012-ST dated 29.06.2012 or the Adjudicating Authority has erred in sanctioning the refund on the basis of the repealed Notification ibid. 8. Regarding the above issue, I find that the Appellant has raised a valid question as the refund claims were filed after the roll out of GST on the Appointed day i.e. 01.07.2017, and by this date the Notification ibid was already repealed vide Section 173 of the Central Goods & Service Tax Act, 2017. In the light of this fact, the refund claims were not eligible for processing under the erstwhile provisions of Service Tax regime, ....
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.... reproduced below: New Delhi, the 29th June, 2012 Notification No. 41/2012-Service Tax G.S.R. ___ (E).- 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 of Revenue) number 52/2011 - Service Tax, dated the 30th December, 2011, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 945(E), dated the 30th December, 2011, 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 so to do, hereby grants rebate of service tax paid(hereinafter referred to as rebate) on the taxable services which are received by an exporter of goods (hereinafter referred to as the exporter) and used for export of goods, subject to the extent and manner specified herein below, namely:- Provided that - a) the rebate shall be granted by way of refund of service tax paid on the specified services. Explanation. - For the purpos....
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....ing the same to the proper officer of customs, to the effect that- (i) the rebate of service tax paid on the specified services is claimed as a percentage of the declared Free On Board(FOB)value of the said goods, on the basis of rate specified in the Schedule; (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, spec....
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.... permitting clearance and loading of the said goods for exportation under section 51 of the Customs Act, 1962(52 of 1962); h) where the total amount of rebate sought under a claim is upto 0.50% of the total FOB value of export goods and the exporter is registered with the Export Promotion Council sponsored by Ministry of Commerce or Ministry of Textiles, Form A-1 shall be submitted along with relevant invoice, bill or challan, or any other document for each specified service, in original, issued in the name of the exporter, evidencing payment for the specified service used for export of the said goods and the service tax paid thereon, certified in the manner specified in sub-clauses (A) and (B): (A) if the exporter is a proprietorship concern or partnership firm, the documents enclosed with the claim shall be self-certified by the exporter and if the exporter is a limited company, the documents enclosed with the claim shall be certified by the person authorised by the Board of Directors; (B) the documents enclosed with the claim shall also contain a certificate from the exporter or the person authorised by the Board of Directors, to the effect that specif....
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.... be recovered under the provisions of the said Act and the rules made thereunder; (5) This notification shall come into effect on the 1st day of July, 2012. 4.5 From the perusal of the above reproduced notification it is evident that the notification is complete code in itself as it - creates the right to rebate of the service tax paid on the input services received by the exporter of the goods for use in the export of the goods; Provides for the manner in which the notification providing for the rebate of service tax paid on such input services shall be given effect to; Provides for the required safeguards and conditions in implementing the scheme as per notification; Provides for the period of limitation within which such refund claim needs to be filed; Provides for the manner in which rebate/ refund claim shall be processed by the jurisdictional officer and also the time period in which the claim has to be processed; Provides that no CENVAT Credit off the service tax paid on the input services has been taken. However, the notification does not provide for any limitation on the period in which the goods have to ....
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....ture goods on the basis of the several commitments which would have been made by the assessees concerned. Therefore, the Scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier Scheme was applied under which the assessees had availed of the credit facility for payment of taxes. It is on the basis of the earlier Scheme necessarily that the taxes have to be adjusted and payment made complete. Any manner or mode of application of the said Rule would result in affecting the rights of the assessees. 6. We may look at the matter from another angle. If on the inputs, the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus, 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 m....
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.... case may be) to the extent mentioned in the sub-section (1) or section 173 shall not- (a) .....; or (b) .....; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed Acts or orders under such repealed or amended Acts: Provided ....; or (d) ......; or (e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed; (f) affect any proceedings ..... 4.8 The observation made by the Commissioner (Appeals) in resp....