2024 (3) TMI 232

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....BSR-II/2011 dated 20.12.2011 passed by the Ld. Commissioner (Appeals), Bhubaneswar, wherein the Ld. Commissioner (Appeals) upheld the rejection of refund by the adjudicating authority to the extent of Rs.12,14,012/- while sanctioning the refund of Rs.2,81,468/- to the appellant. 2. The facts of the case are that the Appellant is an exporter of Iron Ore and recipient of Port services. Notification No. 41/2007-ST dated 06.10.2007 exempts the service tax leviable on taxable services namely, port services provided for export of goods. The said exemption is to be claimed by an exporter by way of refund as covered under the aforesaid Notification No. 41/2007. Accordingly, on 30.05.2008 the appellant applied for refund of Rs.94,56,051/-, which ....

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.... 2008 to March 2008 on 30.05.2008. However, upon examination, the ld. adjudicating authority has noticed that some of the shipping bills/invoices were actually pertaining to the quarter ending December 2007 and accordingly he has held that such part of the claim filed was beyond the period of sixty days prescribed in the Notification No. 41/2007. 2.2 The appellant preferred an appeal before the ld. Commissioner (Appeals), who vide order impugned herein has rejected the refund amount of Rs.12,14,012/- while sanctioning the refund of Rs.2,81,468/- to the appellant. Aggrieved against the rejection of the refund to the extent of Rs.12,14,012/- on the ground of limitation, the Appellant filed this appeal. 2.3 For the sake of convenience, t....

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....e end of the relevant quarter is only a mechanism to claim the refund. They submit that the service providers do not provide the relevant invoices to the exporter for payment of service tax within 60 days from the end of the relevant quarter and hence they could not file the refund claims within the stipulated time period. Having realized the above difficulty of the exporters, the Government of India vide Notification No.32/2008-ST dated 18.11.2008 extended the period of the limitation for filing a refund claim from "60 days" to "six months". Therefore, it is evident that both the conditions in the above Notification are self-contradictory and the procedural condition in clause (e) thereof has to subserve the substantive condition mentioned....

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....eard both sides and perused the appeal records. 6. We observe that Notification No.41/2007-ST dated 06.10.2007 exempts the service tax leviable on taxable services namely, port services provided for export of goods. The said exemption is to be claimed by an exporter by way of refund. The Appellant has filed the refund application for the quarter ending January 2008 to March 2008 on 30.05.2008. However, it was found that some of the shipping bills/invoices were pertaining to the quarter ending December 2007. Hence, both the lower authorities observed that such part of the refund claim filed was beyond the period of 60 days prescribed in the Notification No. 41/2007. Accordingly, the impugned order has rejected the refund amounting to Rs. ....

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....o as to allow the refund applications filed within the period of six months from the quarter ending. We also observe that the substantial benefit of refund cannot be denied on account of non-fulfilment of the procedural conditions prescribed in the notification. This view has been taken by this Tribunal vide the Final Order No.76710/2023 dated 20.09.2023 in the case of Commissioner of C.G.S.T. & Central Excise, Jamshedpur v. M/s. Rungta Mines Ltd. [2023 (9) TMI 1093 - CESTAT, Kolkata] wherein this Tribunal has held that the extension of the time limit for filing the refund claim from "60 days" to "six months" being a piece of beneficial legislation, has to be considered as a retrospective amendment. The relevant part of the said decision is....

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....revised time limit. Accordingly, the Commissioner (Appeals) has rightly allowed the refund of Rs.56,71,926/- which was rejected by the adjudicating authority on the ground of tame bar. 13. In his submission, the Ld. A.R. cited the decision of the Hon'ble Apex Court in the case of UOI Vs Uttam Steel Ltd, and contended that a dead claim cannot be revived by a subsequent amendment in the Notification. It is his submission that the refund claim was filed beyond the 60 days as stipulated in the notification 41/2007-ST, well before the amendment on 18-11-2008. Hence, according to him it was a dead claim which cannot be revived as per the decision of the Hon'ble Supreme Court cited above. We do not agree with the interpretation of....