TaxTMI 
TaxTMI 
2024 (7) TMI 110
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....Chennai - I. (impugned order). 2. Brief facts are that the respondent (M/s. Tril Infopark Ltd) is a SEZ unit and had registered with the Service Tax Department. The respondent had field a refund claim on 30.9.2009 under section 11B of the Central Excise Act, 1944 for an amount of Rs.96,89,348/- being the service tax paid by them on specified services during the period from October 2008 to June 2009. The adjudicating authority had rejected the refund stating that the claim was covered under Notification No. 9/2009-ST dated 3.3.2009 and hence the refund of services pertaining to the period prior to that date i.e. 3.3.2009 which is the effective date of the above Notification was not eligible and also that certain invoices on which service ....
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....e refund is liable for rejection due to which a bulk of the claim was time barred. Further regarding the invoices where the actual payments were made after 03/03/2009, the services were received prior to the date of the issue of notification that is 03/03/2009, hence the entire claim is liable for rejection. Moreover, the respondent has not made available the list of approved services from the approval committee along with the refund claim which is a mandatory requirement as per the notification. He hence prayed that the Order in Original may be restored. 3.2 The learned counsel for the respondent submitted that the Respondent has filed an application for refund of service tax paid towards input services consumed for the authorized opera....
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....t be eclipsed by the procedural prescriptions of Notification No.9/2009. 4. Heard both sides. We find that this is a case where the department is aggrieved by the learned Commissioner (Appeals) order on the following grounds; (i) applicability of the time limit as per section 11B of the Customs Act 1962 read with section 83 of the Finance Act 1994, for a refund filed under Notification No. 4/2004-ST dated 31/03/2004, on 30.9.2009, for the period October 2008 to 02.03.2009, by adopting the procedure under Notification No. 9/2009-ST dated 03/03/2009. (ii) the respondent has not made available the list of approved services from the approval committee along with the refund claim as per Notification No. 9/2009-ST dated 03/03....
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....ubordinate legislation or rules cannot prevail or be made, in such cases. The imposition of a period of limitation for the first time, without statutory amendment, through a notification, therefore could not prevail." ( emphasis added ) The said Judgment was also quoted by Madras High Court in M/s. Biesse Manufacturing Co. P. Ltd., Vs. The Assistant Commissioner of Customs (Refunds-II) [W.P. No.17407 of 2020, Dated: 12.07.2021], while allowing the appeal. In the light of the said judgments clarifying the legal position, it is clear that a period of limitation mandated through a notification cannot prevail over the statutory period. We hence do not find any error in the impugned order and uphold the same. 6. As regards point (....
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....tilization of goods which are otherwise taxable. Hence as stated in the Apex Courts judgement above it is essential for the respondent to show compliance. Unfortunately, the impugned order and the reply filed by the respondent are silent on this aspect. We do not want to deny them of a substantive benefit without giving them an opportunity to show that they have complied with the said condition of the notifications or not. We hence find it proper to remand the matter to the lower authority to examine this matter alone and decide the issue on merits. 7. Having regard to the discussions above, we accept the applicability of the time limit as per section 11B of the Customs Act 1962 for a refund claim governed by Notification No. 04/2004-ST ....