TaxTMI 
TaxTMI 
2024 (10) TMI 1263
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....mandatory procedures set out in the notification were not followed by the appellant. After due process of law, the learned Adjudicating Authority rejected the refund claim. The appeal filed by the appellant before the First Appellate Authority was allowed and the lower authority was directed to sanction the claim after necessary verification. In remand, the learned Adjudicating Authority rejected the refund claims for non-compliance of procedures / conditions stipulated in Notification No. 52/2011-ST dated 30.12.2011. In further appeal, the Commissioner (Appeals) upheld the lower authority's order. Hence the present appeal. 3. None appeared for the appellant. I find that the party sought an adjournment on 24.7.2024 and went unrepresented during the subsequent earlier hearings on 22.8.2024, 5.9.2024, 7.10.2024 and 17.10.2024. No purpose would be served by postponing the matter and hence I proceed to decide the matter on merits. However, I find that a written submission was filed subsequently by the learned Counsel Shri M.N. Bharathi, for the appellant on 18.10.2024, which I take up for consideration. The learned Authorized Representative Shri Harendra Singh Pal appeared for the res....
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....e service tax leviable thereon under section 66 and section 66A of the said Act, subject to the specified conditions. 6. The appellants have liberally peppered their submissions referring to the claim made as a 'rebate' and being under the 'duty draw back category'. This has led to a piquant situation as it has brought up the issue of jurisdiction of this Authority, without any specific plea of lack of jurisdiction being made by either of the parties in this regard. However, jurisdiction cannot be conferred by the consent of parties and must be examined at the thresh hold itself. 7. It has been held by Constitutional Courts that where an authority making an order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. (See: Kiran Singh & Ors. Vs. Chaman Paswan & Ors.[ AIR 1954 SC 340]). 8. Normally, an appeal against the order passed by the Commissioner (Appeals), lies before CESTAT. However, as per section 129A of the Customs Act 1962 in certa....
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....ion as stipulated under para 2 or 3 of the said notification. The appellant has stated that they had claimed a refund of Service Tax based on actuals and upon production of connected documents as per paragraph 3 of Notification 41/2012 dated 29.06.12 by filing a refund application before their range / division Excise Officials. 12. Relevant portion of the impugned notification, as applicable in this case, is reproduced here under for ease of reference; ". . . the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable services specified in column (3) of the Table below (hereinafter referred to as specified services) falling under sub-clauses of clause (105) of section 65 of the said Act, received by an exporter of goods (hereinafter referred to as the exporter) and used for export of goods (hereinafter referred to as said goods), from the whole of the service tax leviable thereon under section 66 and section 66A of the said Act, subject to the specified conditions: Provided that- (a) the exemption shall be provided by way of refund of service tax paid on the specified services used for export of the said goods; ....
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.... clause (e), shall file the claim for refund of service tax to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, in Form A-1; (h) the claim for refund 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); (i) where the refund involved in a claim is less than rupees five hundred, the same shall not be allowed; (j) where the total amount of refund sought under a claim is upto 0.25% 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 including documents specified in column (4) of the said Table for each taxable service, in original, issued in the name of....
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.... the notification provides two distinct ways of claiming duty exemption. The exemption can be claimed either on the basis of rates specified in the Schedule of rates annexed to the notification, as per the procedure specified in paragraph 2 or on the basis of documents, as per the procedure specified in paragraph 3. 14. An exporter who is not registered as an assessee under the Central Excise Act, 1944, shall as per the procedure specified in paragraph 2, register his service tax code number and bank account number with the customs as obtained by filing a declaration in Form A-2 to the AC / DC of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, and shall make a declaration in the electronic shipping bill / bill of export, while presenting the same to the proper officer of customs. The appellant has not followed this procedure since he has statedly claimed exemption as per paragraph 3 of the notification. 15. As per paragraph 3 a 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 refund of service tax paid on the specified s....
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....notification granting exemption. In Novopan Indian Ltd. (Novopan India Ltd. v. Collector - 1994 (73) E.L.T. 769 (S.C.)), this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave - (1996) 2 SCR 253, held that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption. (emphasis added) 18. The appellant has referred to the following judgments above i.e. i) Indian Oil Corporation v. Union of India ii) IDL Industries Ltd v. Commissioner of Central Excise, Bhubaneshwar, and iii) United Phosphorus Ltd v. Collector of Central Excise, to state that the policy of the Government is no....