TaxTMI 
TaxTMI 
2023 (6) TMI 369
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....iled two refund claims as detailed in table below, in terms of the Notification No 41/2012-ST dated 29th June 2012. Services- Technical Inspection and Certification S No Period Date of Filing Amount 1 July 17-Sept 17 13.06.2018 17,49,237 2 Oct 17-Nov 17 26.09.2018 2,45,445 Total 19,94,682 2.2 The said refund claims were adjudged by the jurisdictional Assistant Commissioner stating as follows: "7. I hereby sanction refund amount of Rs 19,30,237/- (Rupees Nineteen Lakhs Thirty Thousand Two Hundred and Thirty Seven Only) and reject an amount of Rs 64,625/- (Rupees Sixty Four Thousand Six Hundred and Twenty Five 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 ....
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....said goods; (c) the 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) the claim for refund shall be filed within one year from the date of export of the said goods. (f) the rebate being claimed in this case is not a unit or developer of a Special Economic Zone. ii) Details of the LEO dates after considering the withdrawal are as under: Sr No Period of refund claim Date of filing of refund claim Total refund claimed (In Rs.) First LEO date of the period 1 July 2017 to Sept.2017 13.06.2018 17,49,237/- 04.07.2017 2 Oct. 2017 to Nov.2017 26.09.2018 2,45,445/- 04.10.2017 Total Rs. 1994,682/- From the above table, it is clear that the refund claim has been filed within the stipulated time period of one year as specified in the said Notification for the period July 2017 to September 2017 and for the period October 2017 to November 2017. iii) Th....
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....ant has taken the reasonable steps to ensure that appropriate service tax on input service has been paid by them. v) Further it is seen that the difference between the amount of rebate calculated as per scheduled rate (0.07%) and the amount of rebate claimed as per documents is more than 20% of the amount calculated as per scheduled rate. Thus the claimant is fulfilling the condition mentioned in Para No.1(c) of Notification No.41/2012-ST dated 29.6.2012. 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, 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 rebate is claimed on the basis of procedure prescribed in paragraph 2 of the said Notification. The said claimant has submitted required declaration and undertaking mentioning that the claimant is not claiming CENVAT Credit of service tax paid on the specified services which a....
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....r 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: "8. I have gone through case records, grounds of appeal made by the appellant Department and oral and written submission made by the respondents. The issue to be determined is whether the Adjudicating Authority has rightly sanctioned refund to the respondents or the same was liable to be rejected as contended by the appellant Department. Section 142 of the CGST Act, 2017 explains Miscellaneous transitional provisions. The respondents have relied upon section 142(4) of CGST Act, which reads as under: Section 142(4): Every claim for refund filed after the appointed day for refund of any duty or tax paid under existing law in respect of the goods or services exported before or after the appointed day, shall be disposed of in accordance with the provisions of the existing law: Provided that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse: Provided further that no refund shall be allowed of ....
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.... It is clarified that as the transitional credit pertains to duties and taxes paid under the existing laws viz., under Central Excise Act, 1944 and Chapter V of the Finance Act, 1994, the same cannot be said to have been availed during the relevant period and thus, cannot be treated as part of 'Net ITC' 9. Therefore, from the above, it appears that the respondents have filed refund claim under the repealed Notification and it can be construed that the refund sanctioning authority has erred in sanctioning the subject refund claim. Respondents have contended that Section 173 of the CGST Act, 2017, begins with the qualification "Save as otherwise provided under this Act,..." But I am constrained to note that there is no saving clause which would forestall repealing of the Notification No.41/2012-ST dated 29.06.2012." 4.4 Before we proceed further it is necessary to read the Notification in dispute. The text of the notification is 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 referre....
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.... (2) the rebate shall be claimed in the following manner, namely:- (a) manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder shall register his central excise registration number and bank account number with the customs; (b) exporter who is not so registered under the provisions referred to in clause (a), shall register his service tax code number and bank account number with the customs; (c) service tax code number referred to in clause (b), shall be obtained by filing a declaration in Form A-2 to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, of such exporter; (d) the exporter shall make a declaration in the electronic shipping bill or bill of export, as the case may be, while presenting 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 bas....
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....uch exporter; e) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after due verification, allot a service tax code number to the exporter referred to in clause (d), within seven days from the date of receipt of the said Form A-2; f) on obtaining the service tax code, exporter referred to in clause (d), shall file the claim for rebate of service tax to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, in Form A-1; g) the claim for rebate of service tax paid on the specified services used for export of goods shall be filed within one year from the date of export of the said goods. Explanation .- For the purposes of this clause the date of export shall be 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); h) where the total amount of rebate sought under a claim is upto 0.50% of the total FOB value of expo....
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....paid on the specified service within a period of one month from the receipt of said claim: Provided that where the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, has reason to believe that the claim, or the enclosed documents are not in order or that there is a reason to deny such rebate, he may, after recording the reasons in writing, take action, in accordance with the provisions of the said Act and the rules made thereunder; (4) Where any rebate of service tax paid on the specified services has been allowed to an exporter on export of goods but the sale proceeds in respect of said goods are not received by or on behalf of the exporter, in India, within the period allowed by the Reserve Bank of India under section 8 of the Foreign Exchange Management Act, 1999 (42 of 1999), including any extension of such period, such rebate shall be deemed never to have been allowed and may 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 ....
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....ustoms paid on inputs was allowed as credit for payment of excise duty on the final products, in the manufacture of which such inputs were used. The condition required for the same was that the credit of duty paid on inputs could have been used for discharge of duty/liability only in respect of those final products in the manufacture of which such inputs were used. ................... As pointed out by us that when on the strength of the Rules available, certain acts have been done by the parties concerned, incidents following thereto must take place in accordance with the Scheme under which the duty had been paid on the manufactured products and if such a situation is sought to be altered, necessarily it follows that the right, which had accrued to a party such as the availability of a scheme, is affected and, in particular, it loses sight of the fact that the provision for facility of credit is as good as tax paid till tax is adjusted on future 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 res....
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....ct; that is to say, it is not as if credit can be taken only on a final product that is manufactured out of the particular raw material to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available." 4.8 Same view has been expressed as per the Section 173 and 174 (2) of the Central Goods and Service Tax Act, 1994 while repealing the Chapter V of The Finance Act, 1994. The said provisions are reproduced below: Section 173. Amendment of Act 32 of 1994.- Save as otherwise provided in this Act, Chapter V of the Finance Act, 1994 shall be omitted. Section 174. Repeal and saving.- (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, .... (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (hereafter referred to as "such amendment" or "amended Act" , as the 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 ....