TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 932
X X X X Extracts X X X X
X X X X Extracts X X X X
....d of dispute Rebate claimed (in Rs.) Rebate sanctioned (in Rs.) Amount Rejected (in Rs.) (1) (2) (3) (4) (5) (6) (7) (8) 1 ST/41599/2016 O-I-A No. 14 dated 30.05.2016 O-I-O No. LTUC /407& 408/2013 DC (ST-Rebate) dated 31.10.2013 July 2012 to Dec 2012and Apr 2013 to June 2013 Rs.1,03,98,910/- Rs.1,03,98,910/- NIL 2 ST/41600/2016 O-I-A No. 14 dated 30.05.2016 O-I-O No. LTUC /407& 408/2013 DC (ST-Rebate) dated 31.10.2013 Jan 2013 to March 2013 Rs.35,16,388/- Rs.35,16,388/- NIL 3.1 Briefly stated, the facts of the case are that, the Appellant, in terms of Notification No. 39/2012 ST dated 20.06.2012 filed two rebate claims on 20.05.2013 and 24.07.2013 for rebate / refund of service tax paid on various input services utilized by them in export of services. The claims were verified and found that: - i. The Appellant converted their existing service tax Registration into a centralized one and had included R & D centre, Hyderabad with effect from 08.03.2013 and that the claims included input service invoices received during the period prior to inclusion of R & D premises under the centralized Registration; ii. The R & D centre at Hyderabad was functioning as....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 'Filing of Declaration' is classified under the heading 'Procedure' under Notification No. 39/2012 and therefore non filing of such declaration does not amount to non-compliance of substantive condition. iii. The Conditions and Limitations prescribed in the Para-2 of Notification No. 39/2012 are fulfilled and therefore denial of rebate on grounds alien to conditions stated in Para-2 is illegal and unsustainable. iv. The decisions cited by the Ld. Commissioner (Appeals) are not relevant to the instant case and are substantially distinguishable from the Appellant's case. v. Prima Facie, the Ld. Commissioner (Appeals) has failed to answer while the declaration itself is under the heading of "Procedure" and while plethora of cases from the Apex court holding that substantial benefit cannot be denied for the procedural infraction, why the submissions of the Appellants were squarely rejected. vi. The appellant rely on the following case laws to substantiate that in case of beneficiary schemes for exporters, the benefit cannot be denied on procedural lapses. vii. In the case of Tricon Enterprises Pvt. Ltd. [2015 (320) ELT 667], the Government of India held the e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in terms of provisions of the Notification No. 39/2012-ST dated 20.06.2012 which was issued under Rule 6A of Service Tax Rules, 1994. It is mandatory on the part of the rebate sanctioning authority to verify the correctness of the declaration filed prior to export of service by calling for relevant documents and only after such verification where he is satisfied that there is no likelihood of evasion of duty, he may accept the declaration. Whereas, in these cases, that kind of verification has not been conducted. The requirement of filing the declaration and verification as envisaged in the Notification is a substantive condition and cannot be treated as a mere procedural requirement that can be done away with as these are meant to prevent the misuse of the facility. Non-observance of the procedure prescribed in the Notification would obviously disentitle the appellant from sanction of rebate and therefore the rejection of rebate claims on these grounds would sustain and prayed for rejection of the appeals. Finally, she submitted that the Commissioner (Appeals) has rightly allowed the Appeal filed by the Department in rejecting the Refund claims filed, and that the impugned order....
X X X X Extracts X X X X
X X X X Extracts X X X X
....service to be exported. However, the rebate claims were accompanied by invoices of input services issued under Service Tax Rules, 1994 and that it is condonable placing reliance upon a case Law decided by the Supreme Court. Whereas the Commissioner (Appeals) in Par 5.9 of his impugned order has held that Non-filing of the requisite declaration as mandated in the Notification is a substantive violation and hence cannot be construed and to be condoned as a mere procedural infraction for sanctioning of Rebate. We find that Documentary evidence of receipt of payment against service exported along with input invoices evidencing payment of service tax have been submitted. The Lower Appellate Authority has however found the appellant not being eligible for the rebate holding a view that the rebate sanctioning authority has to verify the correctness of the declaration filed prior to export of service and by foregoing such verification by the Original Authority before processing the rebate claim is held to be not in accordance with the law. 10. The procedure prescribed as extracted below, of the Notification No. 39/2012-ST dated 20.06.2012 and its compliance by the appellant is the core of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vals, say once in a month or fifteen days etc., depending upon the arrangement which it has with those service-providers. Now we have to appreciate that in a call centre where there are hundreds of employees attending to calls from abroad at any given point of time, it is next to impossible to anticipate the date of export and with precision demarcate the point of time prior to the export and also determine the point of time when the export may be said to have been completed. What can be the determining factor? Is each call to be considered as an independent export of taxable services? Is the total number of calls attended to on any particular day to be considered as the export of taxable services? Or is the appellant to reckon the calls on a monthly basis? It needs also to be remembered that there is no way of anticipating any call or the number of calls the call centre would be required to attend on a single day, so that the appellant can comply with the requirement of filing a declaration "prior" to the date of export of taxable service. The very bedrock of the business is the attending of calls and given that they are received on a continuous basis, we find it difficult to conc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to all the facts in these appeals, we are of the considered view that the Lower Appellate Authority's finding is erroneous in holding the view that non- verification by the rebate sanctioning authority of the declaration filed prior to the export of service would disentitle the appellant to claim rebate of the service taxes paid which were utilized in the export of service declared. There is substantial and full compliance with all the conditions of the Notification and if the Departmental authorities have not conducted any verification on the declaration filed that cannot be used against the appellant. The Government policy has been all along to promote exports. In all these cases, the appellant have not only exported the declared service i.e, Consulting Engineer Service and also clearly specified the nature of input services which are going to be used for such export of services. Even, in respect of ST/42325-42326/2016, non- sanction of rebate claim for the reason that the appellant failed to initially declare the correct amounts in respect of certain input services and that some invoices were dated prior to the date of filing declaration and certain services were not classi....