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2024 (9) TMI 839
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....siness Auxiliary Service (BAS)'- which are used in export of goods for the respective period, by- claiming refund under Notification No.41/2007-S.T. dated 06.10.2007,- as amended. In respect of such refund claims filed for the period April,- 2008 to December, 2008 in six claims on different dates, the refund- claim filed on 31.03.2009 relating to the period October, 2008 to- December, 2008, was rejected by the original authority vide Order-in-- Original No. RK/R-61/2010 dated 25.03.2010. Further, in respect of- refund claim filed on 31.03.2010 for an amount of Rs.17,17,480/-, in- respect of refund of Service Tax paid in respect of input service- 'Commission paid to the Foreign Agent' which are used in export of- goods during 01.04.2009 to 06.07.2009, was partly allowed to the- extent of Rs.91,275/- relating to the period 01.07.2009 to 06.07.2009- and the refund claimed for rest of the amount of Rs.16,26,205/-- relating to the period 01.04.2009 to 30.06.2009 was rejected by- original authority vide Order-in-Original No. KCK/R-197/2010 dated- 22.01.2010. In an appeal preferred by the appellants against the- above said original orders, the learned Commissioner (Appeals-IV),- Mumbai by....
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....ission- agent's service is used for the purpose other than for export. The- Appellants also submitted details in Annexure-C to this appeal which- establish the nexus between the commission agent service and- export goods. As regard the rejection of refund claim of Rs.- 16,17,016/- on the ground of time bar I have observed that the- Appellants have admittedly filed the refund claim on 31/03/2010 i.e.,- after the issuance of Notification No. 17/2009-ST, therefore the- refund claim deemed to have been submitted under Notification No.- 17/2009-S.T. The Ld. Commissioner (appeals) gravely erred,- firstly mentioning that the application was filed before- 07/07/2009 which is factually incorrect and secondly when- refund claim was admittedly filed on 31/03/2010, it was- wrong on the part of Commissioner to hold that the Appellants have- filed refund claim under the previous notification no.41/2007-ST and- for this reason benefit of public notice No.07/2010 dated 04/03/2010- was not extended to the Appellant. In view of my above- observations, I am of the view that the Appellants are legally- entitled for the refund as claimed before this Tribunal.- However, it appears that both the lower au....
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....d on the ground that there is no mistake- apparent in the said order and the said application is devoid of merit- vide Miscellaneous Order No. M/85127/2020 dated 13.02.2020.- Against such order of the Tribunal, the appellants have preferred- Central Excise Appeal No.6 of 2021 before the Hon'ble High Court of- Bombay, who in their judgement dated 22.06.2023 had restored the- appeal before CESTAT to its original number and directed to decide the- same on merits. On the basis of the same, and upon filing of a- miscellaneous application for restoration vide ROA application No.- 85504 of 2023, the Tribunal had taken note of the directions of the- Hon'ble High Court of Bombay for fresh decision vide Miscellaneous- Order dated 18.01.2024 as follows:- "5. I find that the Hon'ble High Court has already restored the- appeal before CESTAT to its original number and directed to decide- the same on merit. Therefore, the present application seeking- restoration of the appeal dismissed earlier, is infructuous;- accordingly, allowed to be withdrawn. In the result, the- miscellaneous application for ROA is dismissed being withdrawn." 3. Accordingly, when the matter was listed on 07.05.2....
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....09-S.T.,- dated 7-7-2009 simplifies the refund scheme, the nature of benefit- given to the exporters remains as it was under Notification No.- 41/2007-ST. Further, the new notification does not bar its- applicability to exports that have taken place prior to its issuance.- Therefore, the scheme prescribed under Notification No. 17/2007-S.T- would be applicable even for such exports subject to conditions that- (a) refund claim are filed within the stipulated period of one year,- and (b) no previous refund claim has already been filed under the- previous notification". In view of above, new notification No. 17/2009-ST dated- 07.07.2009 is applicable to the exports which had taken place prior- to its issuance, but the Refund claims are filed after 07.07.2009 and- that the refund claim shall be admissible only if the provisions and- conditions of the said notification no. 17/2009-ST are fulfilled.- Further the claimant vide their letter dated 07.12.2015, have stated- the refund is claimed only on the commission agent services- procured from foreign agents. 11.1 Further as regard, the claim of the claimant that Notification- No. 41/2007-ST was substituted by Notificati....
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.... be refunded or rebated/reimbursed. As a- number of input services are used in export of goods, the Government- had provided a mechanism for such refund/remission of service tax- involved in such exports. The instruction issued by the Ministry of- finance dated 17.04.2008 is extracted and reproduced below:- "F. No. 341/15/2007-TRU Government of India Ministry of Finance Department of Revenue (Tax Research Unit) ***** RoomNo.146G, North Block, New Delhi, the 17th April, 2008. Subject: Refund of service tax paid on taxable services used by- exporters which are not input services but could be attributable to- export activities - Regarding. The Annual Supplement to the Foreign Trade Policy, 2004-09- announced on 19.4.2007 stated that service tax on services- rendered and utilised by exporters would be exempted/remitted and- the remission mechanism would be institutionalised after working out- the modalities. 2. Committee of Secretaries (COS) examined the matter and decided- that exemption from service tax could be notified and- reimbursement of service tax based on receipts may be allowed- provided linkage to export is established. ....
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.... by allowing the exporters to file- periodically (for each quarter) and with close monitoring at the highest- level in the CBEC's field formations. In order to avoid frivolous- objections in sanction of such refund claim, such instructions have- gone to the extent of stating that '16 taxable services (which) have- been notified and the service tax paid on these taxable services, which- are attributable to exports even if they are not used as input services,- shall be refunded to exporters.' Notification No.41/2007-S.T. dated- 06.10.2007 is one such notification extending the exemption to certain- specified services, which was superseded by Notification No.17/2009-- S.T. dated 07.07.2009 and further notification No.18/2009-S.T. dated- 07.07.2009 were also issued. The second notification dated- 07.07.20209 further facilitated by specifically including a number of- taxable services for which refund claims can be submitted by- exporters and the time period for filing such refund claims was made- for longer period of one year from the date of export of the relevant- export of goods. It is also found that 'service provided by a- commission agent located outside India and engaged under a ....
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....stipulated period of one- year; and (b) no previous refund claim has already been filed under- the previous notification. 3. The above may please be brought to the notice of the trade and- exporters through suitable public notice." 8.2 On careful perusal of the aforesaid instructions, it transpires that- the Government had provided the refund of service tax involved in- respect of exports, as a nature of benefit by simplifying the scheme- further in providing certain minimum conditions such as (i) filing of- refund claims within stipulated one year period, and (ii) that such- refund claim has not been filed earlier with the departmental- authorities. 8.3. From the findings of the authorities below for rejection of refund- claim as detailed in paragraph 5 above, it is seen that the refund claim- of the appellants was rejected on account of their claim not fulfilling- the conditions 2, 3 & 4 of Notification No.18/2009-S.T. dated- 07.07.2009 which relate to ceiling limit of refund, submission of half- yearly returns and is application in respect of export of canalized- items. In the present case, the facts on record show that the export- goods are nowhere claimed by Rev....