TaxTMI 
TaxTMI 
2023 (9) TMI 1271
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....o are being adjudicated through this common judgment. 2. The exposition of facts leading to the filing of the present appeals is that the respondents filed applications under Section 149 of the Act on 14 March 2017 seeking amendment in their shipping bills filed at the time of export of Gold jewellery and Gold medallions during the period 01 April 2014 to 31 March 2015. It was claimed by Respondents that they are seeking amendment as they had not entered the declaration for claim of Service Tax Rebate [STR] which was required to be made in electronic shipping bill as per paragraph 2 of the Notification No. 41/2012-Service Tax dated 29 June 2012.[Relevant Notification] Accordingly, by way of amendment, they wanted to endorse the said declaration on the said shipping bills so that they could claim STR under the relevant notification. It is an admitted case that the respondents also filed all the relevant documents viz. shipping bills, relevant invoices, airway bills, bank realization certificate, etc. along with their applications for amendment as required vide Section 149 of the Act. 3. The Adjudicating Authority did not allow the amendment application filed by any of the Resp....
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....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 examined. 18. The provisions of section 149 of the Customs Act relating to amendment of documents came up for interpretation before the Bombay High Court in Commissioner of Customs v/s. Man Industries (I) Ltd. The observations of the Bombay High Court are as follows: "3. We have also perused the order of the CESTAT, wherein it is clearly observed as under :- "By application of this principle, it ought to be held that even if the Appellant's case did not fall within four corners of the Board's Circulars in question, the claim was eligible for consideration independently subject to provision of Section 149 of the Customs Act, 1962 and, in view of the facts and circumstances of the case, particularly the undisputed position that the entire claim for conversion of the Shippi....
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....n 149." 21. In Share Medical Care v. 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 cancellation of exemption granted under category 2. The Supreme Court observed that in case the applicant is entitled to the benefit under two different heads, grant of exemption under category 2 and withdrawal of the said benefit cannot come in the way of the applicant claiming exemption under category 3 if the conditions laid down are fulfilled. The observations are as follows: "10. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. It is, no doubt, true that initially the appellant claimed exemption under category 2 of exemption notification which was granted. That, however, does not mean that the appellant could not claim exemption under category 3. So far as cancellation of exemption under category 2 is concerned, we are not called upon to decide legality or otherwise of the said de....
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....re framed in the instant appeals on 22 September 2021:- "I. Whether the learned Tribunal did not err in holding that the provisions of Section 149 of the Customs Act, 1962 will not come into play in case of an exporter seeking rebate under Para 2 of Notification No. 41/2012-ST dated 29.6.2012? II. Whether in view of the fact that the respondent could not produce any document to show that taxable services on which service tax has been allegedly paid by the respondent, were actually received by it and were further used for the export of goods, could the application of the respondent seeking amendment in the shipping bills filed by it, be still allowed by the learned Tribunal? III. Whether the learned Tribunal erred in not appreciating the fact that the terms and conditions of Notification No. 41/2012-ST dated 29.6.2012 required strict compliance and the respondent failed in doing so? " ANALYSIS AND REASONING: 6. Having considered the submissions addressed by the learned counsels for the rival parties at the Bar, we find that it is a common case of the parties that the shipping bills were filed during the period 01 April 2014 to 31 March 2015 without d....
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....oods, taxable services that have been used beyond the place of removal, for the export of said goods; (ii) in the case of goods other than (i) above, taxable services used for the export of said goods; but shall not include any service mentioned in sub-clauses (A), (B), (BA) and (C) of clause (i) of rule (2) of the CENVAT Credit Rules, 2004; (B) "place of removal" shall have the meaning assigned to it in section 4 of the Central Excise Act 1944 (1 of 1944); (b) the rebate shall be claimed either on the basis of rates specified in the Schedule of rates annexed to this notification (hereinafter referred to as the Schedule), as per the procedure specified in paragraph 2 or on the basis of documents, as per the procedure specified in paragraph 3; (c) the rebate under the procedure specified in paragraph 3 shall not be claimed wherever the difference between the amount of rebate under the 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, (d) no CENVAT credit of service tax paid on the specified services used for export of goods has bee....
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.... 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 on the service tax actually paid on any specified service on the basis of duly certified documents; (b) the person liable to pay service tax under section 68 of the said Act on the taxable service provided to the exporter for export of goods shall not be eligible to claim rebate under this notification; (c) the manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, shall file a claim for rebate of service tax paid on the taxable service used for export of goods to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture in Form A-1; (d) the exporter who is not so registered under the provisions referred to in clause (c), shall before filing a claim for rebate of service tax, file a declaration in Form A-2, seeking allotment of service tax code, to the Assistant Commissioner of Central Excise or the Dep....
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....tax payable thereon has been paid and the specified service has been used for export of the said goods under the shipping bill number; (i) where the total amount of rebate sought under a claim is more than 0.50% of the total FOB value of the goods exported, the procedure specified in clause (h) above shall stand modified to the extent that the certification prescribed thereon, in sub- clauses (A) and (B) shall be made by the Chartered Accountant who audits the annual accounts of the exporter for the purposes of the Companies Act, 1956 (1 of 1956) or the Income Tax Act, 1961(43 of 1961), as the case may be; (j) where the rebate involved in a claim is less than rupees five hundred, the same shall not be allowed; (k) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after satisfying himself,- (i) that the service tax rebate claim filed in Form A-1 Is complete in every respect; (ii) that duly certified documents have been submitted evidencing the payment of service tax on the specified services; (iii) that rebate has not been already received on the shipping bills o....
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....schedule to the notification. Further, no dispute was raised by the appellant to the assertion/declaration by the respondents in their request letter dated 14 March 2017 that the sales remittances had already been received on each of the export consignments as per the RBI guidelines. 9. However, it was urged by learned counsel for the appellant that the proposed amendment could only be allowed at the discretion of the Proper Officer only when it is in 'public interest' and also on the satisfaction arrived at by the Competent Authority that the taxable services had been received by an exporter of goods so as to claim STR. Further, canvassing that the respondents had failed to specify payment of Service Tax on specified services utilised by them for carrying out export so as to seek rebate, it was urged that the use of word 'shall' in the entire body of the Notification dated 29 June 2012 leaves no scope for doubt that the declaration had to be filed mandatorily at the time of filing of the shipping bills. Reliance was also placed on the decision in M/s. Eagle Flasks Industries Ltd. v. Commissioner of Central Excise, Pune 2004 [171] ELT 0296 S.C., wherein it was observed as under:....
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....We are in the business of export of Gold jewellery. During the period 01 April, 2014 to 31 March, 2015, while making the exports, we could not enter the declaration for claim of Service tax refund required to be made in the electronic shipping bill/bill of export as per Para (2) of the Notification No. 41/2012 dated 29th June, 2012. The detail of exports made by us during the period is enclosed. We have been registered under the Central Excise Rules 2002 holding central excise registration number AACCM9507FSD003. Therefore, copies of all these shipping bills are again enclosed along with copy of invoice & airway bill and the same be please amended to include the declaration for Service tax rebate. 2. Further, as per the proviso to Sec. 149 of the Customs Act, 1962, the amendment has been sought on the basis of Notification No. 41/2012 dated 29th June, 2012 which was in existence at the time the goods were exported. 3. Further, we have complied with the provisions of the said notification and declares that we shall not make any claim for refund of service tax paid on the basis of procedure prescribed in Paragraph (3) as per Notification No. 41/2012 dated 29th June,....
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....11 (268) E.L.T. 443 (Del.), which concerns export benefits to a manufacturer. The question in this case was whether an amendment could be made in the shipping bills about the scheme from "DEPB/DEEC" to "DEBB/DEEC cum-duty drawback". The Court held as follows :- "6. As per proviso of this Section 149, no amendment of a shipping bill was to be allowed after the export goods have been exported except on the basis of the documentary evidence, which was in existence at the time the goods were exported. The submission of the learned counsel for the appellant/exporter in this regard was that the exporter was in possession of all the documents at the time of export to show that it was entitled to claim under the DEPB/DEEC cum- drawback scheme. From the plain reading of Section 149, it may be seen that exporter could not claim amendment in routine and as a matter of right. The discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs house. Though this discretion was to be exercised judiciously, but it was qualified with the proviso that the amendment could be allowed only if it was based on the documentary evidence....