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2024 (9) TMI 840
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.... Gem & Jewellery Export Promotion Council and is holding Service Tax registration No.AAAFL0356LST001 with the jurisdictional Service Tax authorities. In respect of export of 'Cut and Polished Diamonds' for the period October, 2015 to March, 2016, the appellants have claimed refund of service tax paid on input services which are eligible to be claimed as refund under Notification No.41/2012-ST dated 29.06.2012, by submitting their refund application in prescribed format to the jurisdictional authorities on 30.09.2016. Upon scrutiny of such application, the Assistant Commissioner (Refund-II) in the office of Commissioner of Service Tax-IV, Mumbai have found that the same needs to be considered by the Commissionerate of Service Tax-II, Mumbai and hence forwarded such refund application to them vide their letter dated 23.11.2016. 2.2 The jurisdictional Assistant Commissioner (Refund), Commissionerate of Service Tax-II, Mumbai had scrutinized the refund application and found that the appellants is the manufacturer and had exported 'Cut and Polished Diamonds' during the relevant period which are excisable goods. Therefore, he found that all services which are used for export of goods ....
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....or the appellants have submitted that the reason mentioned for denial of refund is of procedural in nature, which is curable and the appellants have done the needful in this regard. Whereas the Notification No. 41/2012-ST under which the refund is claimed contemplates the substantial condition which is use of input services in relation to export of goods, which have been duly complied by the appellants. Further, the appellants have initially filed a refund before a proper officer, i.e., Commissioner of Service Tax-IV, Mumbai under whose juriscition the Bandra-Kurla Complex office address as a registered office come under, which is declared to the department by way of amendment dated 20.04.2014. It is the Assistant Commissioner, Service Tax-IV who has forwarded said Refund Claim to the office of Assistant Commissioner, Service Tax, II vide his letter dated 23.11.2016. The appellants having duly notified the address to the departmental authorities and having fulfilled the conditions of the notification are at no fault and therefore the refund claim eligible as per law and which is sanctioned to them by original authority, should be restored to them and prayed that their appeal be all....
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.... appreciate the above issue under dispute, the Notification No.41/2012-S.T. dated 29.06.2012 under which the refund has been claimed, which is relevant to the dispute, are extracted herein and given below for ease of reference: Rebate for Service tax paid on Services used for export of goods - New Simplified Scheme - Notification No. 41/2012-S.T. dated 29.06.2012 "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 expor....
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....issioner 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 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....
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.... 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 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 exporte....
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....s 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......" 8.1 On perusal of the above notification under which refund of service tax has been claimed, it transpires that the refund is being allowed in respect of service tax paid on the specified services used in respect of export of goods at the prescribed schedule of rates, subject to fulfillment of the conditions mentioned in clause (a) to (h) of paragraph 1; clause (a) to (h) of paragraph 2. It is the fact on record, that the original authority had scrutinized the refund claim filed 30.09.2016 and after recording the findings that the appellants have followed all the prescribed procedure and have also fulfilled all the conditions of the said Notification dated 29.06.2012, had sanctioned the refund. Ho....
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....ived by the department by acknowledging it on 29.04.2014, for single premises at their new address viz., "GE-2022, 2nd Floor, Bharat Diamond Bourse, Bandra Kurla Complex, Bandra (East), Mumbai - 400 051". Further, I also find that the said new address as above was also duly incorporated in the ST-2 certificate. Further, there is no dispute with respect to use of input service in the provision of final products being exported; except for the procedural aspect with respect to correct address. 10. In this regard, I find that Hon'ble Madras High Court have held in the case of Commissioner of Service Tax-III, Chennai Vs. CESTAT, Chennai - 2017 (3) E.L.T. 45 (Mad.) have held that right of the exporter for refund cannot be denied on account of not correlating the location of registered address. The relevant paragraph of the said order is as follows: "7.2 A bare perusal of the clause would show that insofar as the provider of output services is concerned, for making an application for refund of Cenvat credit, he is required to file an application in the prescribed form, i.e., Form A, which is annexed to the notification, and the said application is required to be made to the De....