TaxTMI 
TaxTMI 
2026 (6) TMI 800
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....the same under 'Airport Services'. The appellant filed three rebate claims for the period from April 2011 to August 2011 within the prescribed one-year period from the relevant dates, under Notification No. 17/2009-ST dated 07.07.2009 as amended by Notification No. 37/2010 dated 28.06.2010 in respect of the Service Tax paid for the exported ATF. As per clause 2(f) of Notification No. 17/2009-ST the claim for refund shall be filed within one year from the date of export of the said goods and 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. These claims filed on 30.03.2010 appeared to the department to have been made without proper export documents and were returned to the appellant on the same date with an endorsement. A revised claim was filed on 30.08.2013 which was filed, as per the impugned order, after a lapse of 18 months from the relevant date. After due process of law, the Ld. Adjudicating Authority rejected all three rebate claims on the grounds of time-bar under section 11B of the Central Excise Act, 1944. The appellant's a....
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.... ELT 958], and Themis Medicare Ltd. [2014 (313) ELT 924], it was held that delay or procedural shortcomings may be condoned where export and eligibility conditions are satisfied. Similarly. in Suksha International Vs Union of India [1989 (39) ELT 503 (SC)], the Hon'ble Supreme Court ruled that liberal interpretation must be adopted to advance the purpose of export benefit schemes. H. The impugned order has relied on the CESTAT New Delhi's Order in Malwa Cotton Spinning Mills Vs CCE [Final Order No. 55841, dated: 12.03.2013], however this was passed in the context of payment of interest and does not relate to the issue of computation of time limit for time bar of a claim. Therefore, no reliance can be placed on the said decision. I. The following decisions were relied upon although a few of them only were relied on at the Bar. (i) CCE DELHI V ARYA EXPORTS AND INDUSTRIES 2005(192) E.L.T 89 (DEL) (ii) DURALINE INDIA PVT LTD V CCE GOA 2009(237) E.L.T 689 (iii) CCE GUNTUR V BINNY LTD 1987(31) E.L.T 722 (iv) THEMIS MEDICAL CARE LTD 2014(313) E.L.T 924 (v) SUPER SPINNING MILLS LTD V CCE COIMBATORE 2007(219) E.L.T 958 (vi) LALLUBHAI AMICHAD Ltd. 2014 (311)....
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.... for Airport services used for the export of goods - as amended by Notification No. 37/2010 dated 28.06.2010 and superseded by notification 52/2011- Service Tax, dated 30.12.20011. However, when the appellant filed its final claim notification 41/2012-Service Tax, dated: 29.06.2012 was in force which was issued in supersession of notification 52/2011- Service Tax, dated 30.12.20011 setting out the procedure for claiming refund, which has not been followed. As per the Supreme Court's judgment in State of Orissa and Others Vs Mangalji Mulji Khara And Others [1985 SCC OnLine SC 310], at para 66, 'supersession' means 'repeal or replacement' of the previous notification by the new notification. Hence the procedure set out in notification 41/2012-Service Tax needs to be followed, which was not done. Hene for these reasons he prayed that the appeal may be rejected. Analysis 4. We have gone through the appeals and heard the parties. It is not disputed that the appellant had filed a defective refund claim within the one year period after the export of goods. They did not enclose the necessary supporting documents and the claim being defective was returned by the department to the A....
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....h to establish that the amount of duty or interest, in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty or interest, has not been passed on by him to any other person ..............." (emphasis added) 5.1 Chapter 9 of the Central Excise Manual pertains to 'REFUND' and help us understand the departments view on the matter. It was cited by the Ld. Adjudicating Authority and the Ld. A.R.. Relevant paras are extracted below: "Introduction 1.1 Refund of any duty of excise is governed by Section 11B of the Central Excise Act, 1944. By definition, refund includes rebate of duty paid on goods exported out of India or on materials used in the manufacture of goods exported out of India. The refund claim can be filed within one year from the relevant date in the specified Form [for the time being the format R-1 specified under rule 173S of the erstwhile Central Excise Rules, 1944] by an assessee or even a person who has borne the duty incidence, to the Deputy/Assistant Commissioner of Central Excise having jurisdiction over the factory of manufacture. 1.2 The "relevant date" has been defined in t....
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....The claim shall be taken as filed only when all relevant documents are available. In case of non-availability of any document due to reasons for which the Central Excise or Customs Department is solely accountable, the claim may be admitted that the claimant in not in disadvantageous position with respect to limitation period." (emphasis added) 6. Further, representative copy of the 'Deficiency Memo' issued by the department to M/s IOCL and submitted by the Appellant in its Appeal Memorandum, is reproduced below: It is trite law that any refund claim filed after the time limit mentioned in the notification/ statute will be time barred. However, in this case there is some ambiguity in the legal position since an initial claim has been filed within time, albeit without complete supporting documents. 7. The SCN dated 29.11.2013 proposes rejection of the refund claim on the ground that proof of export (ARE-1 and Shipping Bill) was not submitted to the Divisional Office. It, however, records the appellant's submission that proof of export was submitted to the Range Office on 14.08.2013 and to the Division Office on 30.08.2013, i.e. after one year from export. Section 27 of t....
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....laim the benefit of interest where the complete refund claim was filed only after the expiry of the statutory period. Further, the Supreme Court in Union of India & Ors. Vs VKC Footsteps India Pvt. Ltd. [2021 (15) SCR 169 / 2021 SCC OnLine SC 706] held that refund of taxes is neither a fundamental nor a constitutional right. 8. At the same time, a blanket rejection of all refund claims filed within time but returned with curable deficiencies would be inappropriate, as delays and documentation lapses may occur in the ordinary course of business as in life and which can be explained by the applicant with "sufficient cause". The Apex Court in Esha Bhattacharjee Vs Managing Committee of Raghunathpur Nafar Academy & Ors [(2013) 12 SCC 649], examined a large number of judgments and summarised the principles in determining "sufficient cause", as under: "21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injust....
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....tion by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: 22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistenc....
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....mption clause that are important. Substantial compliance of an enactment is insisted, where mandatory and directory requirements are lumped together, for in such a case, if mandatory requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non- compliance of directory requirements. In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty. The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give ....
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....Ltd., the appellant in this case, and deals extensively with a host of legal issue pertaining to limitation and is pertinent to the issue in this appeal. The relevant portions are extracted below: "58. The law of limitation is founded on public policy. The object of limitation is to put a quietus on stale and dead disputes. A person ought not to be allowed to agitate his claim after a long delay. 59. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The idea is that every legal remedy must be kept alive for a legislat....
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....its instrumentalities that compelled this Court in Postmaster General [Postmaster General Vs Living Media India Ltd. - (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327], to deviate from the earlier practice of extending unwarranted leniency governmental agencies, and to emphasise that the law of limitation binds the State no less than the ordinary litigant. The said decision is in three parts: - (i) First, This Court held that claims of the Government and its functionaries being an impersonal machinery and inherited with bureaucratic methodology can no longer be accepted to excuse delays under Section 5 of the Limitation Act, in view of the modern technologies being used and available. The relevant observations read as under: - "27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we....
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.... of public interest cannot by any stretch be used as a carte blanche for official inaction. It observed that Government departments, far from being entitled to presumptive indulgence, are in fact under a higher obligation to discharge their functions with diligence, vigilance, and scrupulous regard to limitation. The relevant observations read as under: - "29. [...] The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few." (Emphasis supplied) *****. *****. ***** iii. The ratio of the decision of Postmaster General. . . . . . . . 211. The earlier decisions of this Court, particularly in K.V. Ayisumma [Special Tehsildar, Land Acquisition Vs K.V. Ayisumma [(1996) 10 SCC 634], Chandra Mani [State of Haryana Vs Chandra Mani - (1996) 3 SCC 132], Lipok AO [State of Nagaland Vs Lipok Ao - (2005) 3 SCC 752 : 2005 SCC (Cri) 906] and Indian Oil Corpn [Indian Oil Corp....
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....ficiency. It would, in substance, incentivise indolence and foster a culture where accountability for delay is eroded. If the State is assured that its lapses will invariably be excused under the rubric of "public interest," there would remain little incentive for its officers to act with vigilance or for its instrumentalities to streamline procedures for timely action. The consequence would not be the advancement of public interest but rather its betrayal. *****. *****. ***** 235. An application seeking condonation of delay is to be decided only within the parameters laid down by this Court. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, on lofty ideals amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the statute." (emphasis added) 12. We now examine the issue in the light of the principles set out in the judgment above. The Customs Act read with the Notification affords an exporter a one-year window from the date of export to file a refund claim, which is reasonable. Every refund application made after the....
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....e Bench of the Apex Court in Gujarat Steel Tubes Ltd Vs Gujarat Steel Tubes Mazdoor Sabha [1980 SCR (2) 146, AIR 1980 SUPREME COURT 1896], an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine. 12.3 As stated by the Apex Court in KARNATAKA HOUSING BOARD (supra), no litigant, be it a private party or a State or any of its functionaries, is entitled to a broader margin of error, falling in the category of inaction, negligence or casualness, in matters of limitation. Further as stated by the Apex Court, "discretionary power would not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic." [State of M.P. & Ors. Vs Nandlal Jaiswal & Ors. - (1986) 4 SCC 566]. The impugned order is hence legal and proper and merits to be upheld. 13. Numerous decisions were cited by the Ld. A.R. The Supreme Court's decision in Mangalji Mulji Khara (supra) regarding the effect of "supersession" of a notification does not spring from the SCN, is beyond its scope, and is inapplicable. The Madras High Court decisions in Natraj and Venkat Associates; M/s Celebrity Designs and GTN Engineering....
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..... M. Ajit Kumar, Member (Technical), whereby the impugned order rejecting the Appellant's three rebate claims on the grounds of time-bar under Section 11B of the Central Excise Act, 1944 was held as legal and proper and warranting no interference. With respect, I am unable to concur with the analysis and conclusions arrived at by my Ld. Brother in his order, for reasons elucidated infra. 16. The relevant facts, as emanating from the appeal records, are that the appellant is a Government of India undertaking and the appellant's Aviation Fuel Station (AFS) is situated within the premises of Airport Authority of India (AAI) at Meenambakkam Airport, Chennai. The AFS is stated to be registered with the Central Excise Department as Export Warehouse. The present dispute is related to the activity of supply of Aviation Turbine Fuel (ATF) by the appellant to the airlines on foreign run operating out of Chennai International Airport. AAI charges the appellant a 'Throughput Charge' on a kilolitre basis on the goods exported i.e. ATF supplied to the airlines on International Flights and collects service tax on the same under 'Airport Services'. 17. The Notification No.17/2009-ST dated 07....
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....aims filed for being beyond the time limit of one year from the date of export. The SCNs also stated that Notification No. 41/2012-ST dated 29.06.2012 governed the refund claims filed on 30.08.2013 and further, stating that para 3(g) of the notification clearly says that the claim for rebate of service tax paid on the specified services used for export of goods should be filed within one year from the date of export of the said goods; went on to allege that the appellant has contravened the provisions of Section 11B of Central Excise Act 1944. 19. The appellant in the separate replies filed, as well as in the written submission filed during the personal hearing, inter-alia, submitted that they had filed the service tax refund claim in Form A-1 along with the original invoice of the service provider, payment details, proof of payment of value of service and the service tax thereon as well as details of exports along with the certificate from the chartered accountant who audits the appellant's annual accounts, as per provisions of the notification within one year from the date of export. The only deficiency pointed out was that proof of exports viz shipping bills were not enclosed....
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...., a few key submissions on behalf of the Appellant merit being stated, namely, that it is a settled legal position that a revised or rectified claim does not substitute or override the original date of filing, especially when the original application was within time; that Notification No.17/2009-ST, under serial No.18, does not prescribe a mandatory list of documents to be submitted for claiming refund. The requirement of specific enclosures such as ARE-1 and shipping bills is not applicable in the present context and therefore denial of refund on the basis of non-submission of such documents, when not mandated, is arbitrary and ultra vires the notification; that the refund rejection defeats the very objective of the exemption scheme designed to promote exports and the appellant having discharged service tax on eligible services and effected exports without any rebate or drawback, is fully entitled to the refund amount claimed; and that since Notification No.41/2012-ST was issued on June 29, 2012 and became effective on July 1, 2012, it cannot govern transactions, services or refund claims that pertained to period prior to that date. 22. It is seen that there is a fundamental di....
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.... which notification would apply, cannot be left hanging fire. 23. Therefore, to my mind, the issues that arise for determination are: A) Whether the Notification No. 17/2009-ST dated 07.07.2009 as amended by Notification No.37/2010-ST dated 28.06.2010 as claimed by the appellant, or the Notification No.41/2012-ST dated 29.06.2012 that was prevalent at the time of filing the revised claim as contended by the Revenue, would apply in the context of the present dispute? B) Whether in the context of the applicable Notification read with Section 11B of the Central Excise Act, 1944 as made applicable in relation to service tax by virtue of Section 83 of the Finance Act, 1994, the non-submission of proof of export with the claim when originally filed by the appellant is to be considered as total absence of substantial compliance so as to warrant upholding of the impugned order rejecting the appellant's subsequent resubmitted claim as barred by limitation? C) Whether the Department's reliance on Chapter 9 (Refund) of the CBEC Manual justified in asserting that the appellant's original refund claim, purportedly lacking necessary documents, cannot be treated as a....
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....e Tax, dated the 7^th July, 2009, published in the Gazette of India, Extraordinary, part II, section 3, subsection (i) vide number G.S.R. 489EUR, dated the 7^th July, 2009". 26. It is seen that the Notification No.41/2012 dated 29.12.2012, however is a rebate scheme and the preamble of the said notification is as under: "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 30^th December, 2011, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 945EUR, dated the 30^th 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 exporter) and used for export of goods, subject to the exte....
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....hip Private Limited, (2015) 1 SCC 1, wherein it was held as under: "33. A Constitution Bench of this Court in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas [AIR 1968 SC 1336: (1968) 3 SCR 623], while considering the nature of amendment to Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act as amended by Gujarat Act 18 of 1965, observed as follows: (AIR p. 1339, para 8) "8. ....... The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from Section 115 of the Code of Civil Procedure, and the legislature has by the amending Act not attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act." 34. It would also be pertinent to mention that assessment creates a vested right and an assessee cannot be subjected to reassessment unless a provision to that effect inserted by amendment is either expressly or by necessary implication retrospective.....
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....xport and upon satisfaction of the conditions of which the appellant became entitled to refund of service tax, was a vested right that has accrued to the appellant, under the said Notification. Therefore, the said Notification No.17/2009 ibid prevailing during the period when the exports were affected, would alone govern the refund claim of service tax that has been preferred in relation to such exports affected, and not the Notification No.41/2012 ibid stipulating rebate of service tax prevailing at the time of resubmission of the claim on 30.08.2013. 31. Therefore, I am of the firm opinion that the vested rights that accrued to the appellant at the time of export to claim refund of service tax in the manner specified in the Notification No.17/2009-ST as amended which was prevailing at that point in time, by adhering to the conditions stipulated therein, cannot be taken away, and the said Notification No.17/2009-ST alone would govern the refund claim preferred by the Appellant. The impugned proceedings initiated under the SCN which itself has proceeded under the premise that it is Notification No.41/2012 that would govern the refund claims, and the consequent impugned orders pr....
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....ercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act) and in supersession of the Government of India in the Ministry of Finance (Department of Revenue) notification No. 41/2007-Service Tax, dated the 6th October, 2007, published in the Gazette of India, Extraordinary, vide number G.S.R. 645(E), dated the 6th October, 2007, 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 exempts the taxable services specified in column (3) of the Table below (hereinafter referred to as specified services) received by an exporter of goods (hereinafter referred to as the exporter) and used for export of goods (hereinafter referred to as said goods) pertaining to sub-clauses of clause(105) of section 65 of the said Act specified in the corresponding entry in column(2) of the said Table, from the whole of the service tax leviable thereon under section 66 and section 66A of the said Act, subject to the conditions specified in the corresponding entry in column (4) of the said Table: ....
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.... be, of such exporter in Form A-l; (f) 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); (g) for each taxable service specified in column (3) of the said Table, the exporter shall enclose all the documents specified in corresponding entry in column (4) of the said Table and the Form A-l with the claim of refund; (h) no refund claim shall be allowed if the same is for an amount less than rupees five hundred; (i) where - (A) the total amount of refund sought under a claim is upto 0.25% of the total declared free on board value of export; (B) the exporter is registered with Export Promotion Council sponsored by the Ministry of Commerce or the Ministry of Textiles; (c) subject to the provisions of (A) and (B) above, each document specified in clause (b) and in column (4) of the said Table shall be enclosed with the....
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....to an exporter by an insurer, including a reinsurer carrying on general insurance business in relation to insurance of said goods. Exporter shall submit document issued by the insurer, including re-insurer, for payment of insurance premium and the document shall be specific to export goods and shall be in the name of the exporter. 2. (zn) Service provided by a port or any person authorised by the port in respect of the export of said goods. xx xx xx xx xx xx xx xx 18. (zzm) Service provided by airports authority or any other person in any airport in respect of the export of said goods. (emphasis supplied) 36. It is also seen that the declaration in the application for claiming refund of service tax paid, as specified in Form A-1 as well as the declaration to be given by a merchant exporter in Form A-2, both contain a declaration as under that is to be attested by the declarant, namely, "I/we shall maintain records pertaining to export goods and the taxable services used for export of the said goods and shall make available, at the declared premises, at all reasonable time, such records for inspecti....
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....udits the annual accounts of the exporter for the purposes of the Companies Act, 1956(1 of 1956) or the Income Tax Act, 1961(43 of 1961), as the case may be. The "such certification", clearly refers to the certification stated in the immediate preceding clause (i) at (F), which stipulates that where the amount of refund sought under a claim is upto 0.25% of the total declared free on board value of export, "the documents enclosed with the claim shall contain a certificate from the exporter or the authorised person to the effect that specified service, to which the document pertains, has been received, the service tax payable thereon has been paid and the specified service has been used for export of goods under the shipping bill number." Thus, when the claim is more than 0.25% of the declared free on board value of export, clause (j) of para 2, which para it is emphasised prescribes the manner in which the exemption shall be given effect to, merely mandates that the certificate to the effect that specified service, to which the document pertains, has been received, the service tax payable thereon has been paid and the specified service has been used for export of goods under the sh....
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....d admittedly, the original claim filed by the appellant has been returned for not enclosing proof of exports along with the claim. Thus it is evident that the Appellant has in full compliance of clause (g) of para 2, having also filed the original invoice of the service provider, payment details, proof of payment of value of service and the service tax thereon along with the refund claim in Form-1 has thus enclosed all the documents specified in corresponding entry in column (4) of the said Table and the Form A-1 with the claim of refund. Nothing precluded the Department from verifying the export details, if need be, at the premises of the appellant as provided for in the notification, consequent to the declaration of the appellant to this effect. 41. As evident from the discussions and reasons given above, there was absolutely no requirement envisaged in the said notification that mandated submission of proof of exports. If at all, the fact that the declaration is being attested by a professional, none other than the chartered accountant who audits the annual account of the exporter coupled with the declaration that the records are being maintained and shall make available, at ....
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....scribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act: Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. [ * * * * ] (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of ex....
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....tting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette. [Explanation. - For the purposes of this section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture ....
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....Thus, as per the requirements of sub-section (1) of Section 11B, the refund applicant who makes an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed has also to submit such documentary or other evidence including the documents referred to in section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and the incidence of such duty had not been passed on by him to any other person. That is to say, the refund applicant also adduces evidence to show that the bar of unjust enrichment has been overcome while adhering to the mandated time limit of one year stipulated therein. Thereafter, as per sub-section (2) of Section 11B, the refund sanctioning authority would examine the refund claim and either make an order accordingly crediting to the Fund the amount so determined, or if the applicant had not passed on the incidence of such duty to any other person, instead of being credited to the Fund, shall be paid to the applicant. 46....
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....nd under Notification No. 17/2009-ST dated 07.07.2009. The essential conditions for sanction of refund is that service tax has been paid and the services availed have been used in export of the goods. The adjudicating authority has rejected the refund mainly on the ground that Invoice No. and Shipping Bill No. has not been mentioned on the invoices issued by the service provider, in the absence of which nexus between the service availed and its use in export of the goods cannot be proved. On perusal of the copies of invoices issued by the service provider it reveals that although invoice number or shipping bill no. has not been mentioned, but a certificate to the effect that services of C&F agent has been availed by the appellant service tax has been paid and the service have been used in relation to export of goods which have been exported vide Bill of Lading/Airway Bill No. mentioned in the certificate. I have perused the documents submitted by the appellant in which a chart has been submitted in which shipping bill has been correlated with the Bill of Lading/ Airway Bill and the invoices issued by the service provider which makes it evident that the use of service in export of t....
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....nt details, proof of payment of value of service and the service tax thereon and details of exports along with the certificate from the chartered accountant who audits the appellant's annual accounts as per provisions of the notification within one year from the date of export, in my considered view, that amounted to not just substantial compliance, but rather full compliance as per the conditions of the said notification. Therefore, the non-submission of proof of export with the claim when originally filed by the appellant cannot be considered as total absence of substantial compliance so as to warrant upholding of the impugned order rejecting the appellant's subsequent resubmitted claim as barred by limitation. For the aforesaid reasons too, I disagree with the finding recorded by Ld. Member (Technical) in his order that substantial compliance is totally absent in the initial refund claim filed. 49. The third issue, namely, whether the Department's reliance on Chapter 9 (Refund) of the CBEC Manual justified in asserting that the appellant's original refund claim, purportedly lacking necessary documents, cannot be treated as a valid claim within the one-year period, is addresse....
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.... of the Act, any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in the prescribed form accompanied by documentary or other evidence as the applicant may furnish, to establish that the amount of duty of excise in relation to such refund claim was collected from or paid by him and that the incidence of such duty had not been passed on by him to any other person. Under subsection (2), the Assistant Commissioner or the Deputy Commissioner as the case may be, is empowered to make an order of refund. Any person aggrieved by any order made under Section 11B would be entitled to prefer an appeal under Section 35 of the Act. It is, therefore, incumbent upon the authority to which an application is made for refund to make an order on such application. By the impugned order, the Assistant Commissioner adopted a novel procedure of returning the claim application which is not contemplated by the provisions of the Act or the Rules made thereunder. By returning the application claiming refund under Section 11B which was already f....
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....efund claim filed and has negated the said contention. In the said case, the refund claim, which was submitted by the respondents therein (assessee) on 23-9-2005 was returned back by the authorities for the reason that the said refund claim was incomplete. Such refund claim was resubmitted by the respondents on 6-3-2006. It was the contention of the Department that the refund claim, if any, can be entertained only as submitted on 6-3-2006. The Tribunal, after formulating a specific point for consideration as "(i) Whether the refund claim, which was returned by the authorities and re-submitted by the respondent, is hit by limitation?" went on to answer the same as under: "7. As regards the Issue No. 1, it is noticed that the respondent has filed refund claim to the authorities on 23-9-2005. The said refund claim was on the ground that the respondent had sold recharge coupon vouchers to the distributors for the prepaid PCO and that the respondent had sold RCVs through M/s. RCIL. It is undisputed that the respondent is a service provider and engaged in the business of providing telephone services all over India. It is undisputed that the respondent had discharged the Service ....
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....for refund could not have been parted with by the Assistant Commissioner by returning it to the claimant. Returning of such application has a serious consequence, because, the fresh application may not be within time from the relevant date and the claimant would lose a valuable right of filing an appeal, if any adverse order would have been passed on the application rejecting it on the ground of any infirmity that may have been noticed by the authority instead of the unceremonious return of the application. The course adopted by the Assistant Commissioner, of returning the claim application without making an order thereon amounts to refusal to perform the statutory duty imposed on him to consider the application and make an order thereof, in accordance with law. The impugned order returning the application of the petitioners for refund of claim is, therefore, illegal and void and is liable to be set aside only on the ground that it was the duty of the Assistant Commissioner to have considered the claim application and made an order thereon under the provisions of Section 11B of the Act, and the relevant rules. The impugned order dated 10-1-2003 is, therefore, hereby set as....
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....troleum Corporation Ltd v Commr of GST & C. Ex, Chennai, reported in 2019 (369) ELT 1636 (Tri-Chennai), held in favour of the appellant therein that the refund claim filed by the Appellant is to be taken as filed on the date on which the original refund claim was acknowledged as received by the Department. It is also pertinent to note that the CBEC itself in its Circular No.586/23/2001-CX dated 12-09-2001, on the subject of Central Excise Manual-Latest important instructions contained therein, has clarified that if there are any instructions in the Manual, which are contrary to provisions of the Central Excise Act, 1944 and the rules made thereunder (including notifications issued thereunder), the provisions of said Act and the rules (including notifications issued thereunder) shall precede. Therefore, in light of the aforesaid decisions, adhering to judicial discipline and respectfully following the same, I hold without any hesitation that the Department's reliance on Chapter 9 (Refund) of the CBEC Manual to assert that the appellant's original refund claim, purportedly lacking necessary documents, cannot be treated as a valid claim within the one-year period, is wholly untenable ....
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....ies or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department." The Apex Court then went on to hold in para 11 that "It is regrettable that when administrative officers are entrusted with quasi-judicial functions, often times they are unable to keep aside administrative considerations while discharging quasi-judicial functions. This Court as well as the High Courts have repeatedly tried to impress upon them that their two functions are separate; while functioning as quasi-judicial officers they should not allow their judgments to be influenced by administrative considerations or by the instructions or directions given by their superiors." (emphasis supplied). A coordinate bench if this Tribunal in Cox & Kings India Ltd v. CST, New Delhi, 2014(35)STR 817 (Tri-Del) has observed that "We find it disturbing that a quasi-judicial authority seeks administrative guidance on the interpretation and scope of a statutory provision which falls for his determination. Judicial or quasi-judicial determination authorizes no such solicitation for guidance on any aspect (of law or fact), to be decided by the authority." The....
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....lies not with the balance sheet of the State, but with the letter of the Statute. To conflate 'justice' with guarding against 'purported burden to the public exchequer' is to transform the Tribunal into an instrument of administration, thereby rendering the right of appeal an illusory remedy. The true mandate of the Tribunal is not the preservation of the Treasury, but as a sentinel on the qui vive for the preservation of Legality. To my mind, the exhortation, if at all any is needed, ought to be silent and to oneself, to endeavour as an adjudicator to constantly guard against one's own perceptions and attendant predilections to ensure that one's decision is based fairly and impartially, on facts and established principles of law. 58. The last issue that remains to be addressed is whether the date of resubmission of the claim by the appellant with the proof of export sought by the Revenue can only be considered to be the date on which the claim has been filed so as to hold the claim filed as barred by limitation, or whether the date on which the claim was originally submitted and was returned with directions to resubmit the same with proof of export documents, is to be considere....
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....o proceed to take a view totally contrary to the view taken in the earlier judgment, thereby creating a judicial uncertainty with regard to the declaration of law involved on an identical issue in respect of the same Exemption Notification. It needs to be emphasised that if a Bench of a Tribunal, in identical fact situation, is permitted to come to a conclusion directly opposed to the conclusion reached by another Bench of the Tribunal on earlier occasion, that will be destructive of the institutional integrity itself. What is important is the Tribunal as an institution and not the personality of the members constituting it. If a Bench of the Tribunal wishes to take a view different from the one taken by the earlier Bench, the propriety demands that it should place the matter before the President of the Tribunal so that the case is referred to a Larger Bench, for which provision exists in the Act itself. In this behalf, the following observations by a three Judge Bench of this Court in Sub-Inspector Rooplal & Anr. v. Lt. Governor & Ors., (2000) 1 SCC 644 are quite apposite: "At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Ben....
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....eads to various problems, primary among them being that it leads to judicial inconsistency and uncertainty. This creates difficulties for counsel and the Court for, opposing judgments may give clients hope for differing outcomes or even for a Court in the future to have to examine multiple cases with differing opinions on the same point. Till such times the opposing views exist, judicial uncertainty is in play for settled precedents ensure definitive outcomes but if contrary views exist, it becomes a matter of choice to follow one and leave aside the other, and it remains no longer, a matter of law. Connected to this is its direct impact on judicial efficiency for if the law on a point is clear it is a matter of fair ease to follow settled precedents leading to a reduction in future effort thereby saving time. Performing a judicial duty or rendering justice which is certain, just, fair and expeditious. 14. When considering these issues, the roles both the Bar and the Bench must be addressed. Counsel appearing in Court to plead the case of a particular party making all effort possible, while balancing ethics and their duty towards the Court, to secure a victory for their cl....
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.... was originally submitted and was returned with directions to resubmit the same after curing the deficiencies, which is to be considered for computing the period of limitation of one year and to determine whether the claim was validly submitted or whether it was time barred. This position in law has been restated time and again as can be seen from the decisions below. 64. In the decision in Abhedya Industries Ltd v. CCE & ST, Hyderabad-III, 2016 (340) ELT 398 (Tri-Hyd), a coordinate bench of this Tribunal has held as under: "9. Coming to the appeal filed by Revenue, we find that their grievance is with regard to Commissioner (Appeals) setting aside the finding of original authority with regard to time-bar and unjust enrichment. In this regard, we are of the view that the Commissioner has correctly relied upon settled case laws which have laid down that the date of initial submission of the refund claim shall be the actual date of submission for the purpose of limitation under Section 11B of Central Excise Act, 1944 and not the date of resubmission." 65. In CCE, Delhi-I v. Arya Exports and Industries, 2005 (192) ELT 89 (Del), the Hon'ble Delhi High Court has held as u....
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....delay in filing the present appeal. The assessee had admittedly submitted the application within the prescribed time and if it suffers from any procedural irregularity the Department was under an obligation to require the assessee to submit the requisite documents. Refund is the right of the assessee and should not be taken away by the State especially with the approach of the kind that was adopted in the present case. The appeal is dismissed on merits. (emphasis supplied) 66. In CCE, Bolpur v. Bhandiguri Tea Estate, 2001 (134) ELT 116 (Tri-Kolkata), a coordinate bench of this Tribunal has held as under: 3. Vide the impugned order the Commissioner (Appeals) has rejected the appeal filed by the Revenue against the order of the Asstt. Commissioner vide which he has allowed an adjustment of Rs. 32,190/- excess paid by the respondents as cess on finalisation of RT-12 returns under Rule 173-I. The Revenue is aggrieved with the fact that though the original refund claim was filed by the respondents well within time, the proper refund claim in prescribed format was filed after directions from the Revenue and after a period of six months. After seeing the Asstt. Commissioner's ....
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.... merely because of some minor procedural infraction if the claim was otherwise due on merits. (emphasis supplied) 68. In Repro India Ltd v. CCE, Belapur, 2016 (43) STR 203 (Tri-Mumbai), a coordinate bench of this Tribunal has held as under: "9. Undoubtedly, there were deficiencies in the applications filed in 2009 including the format of the application form and the lack of certificate from a Chartered Accountant. The officials concerned may have felt the need to call for more evidence to substantiate the sustainability of the claims; this appears to be so from the protracted correspondence on record. 10. For the quarters relevant to the two claims, the stipulated deadline was six months from the end of the quarter. Therefore, the appellant did comply with this stipulation. The returns of the applications for rectifying deficiencies and the refilings thereafter is a clear indication that the competent authorities were not unaware that the claims had been filed on time. If the completeness of the application was a sine qua non for admissibility of the application, the claim could well have been rejected by immediate issue of a show cause notice and adjudication ....
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....ularity the Department was under an obligation to require the assessee to submit the requisite documents. Refund is the right of the assessee and should not be taken away by the State especially with the approach of the kind that was adopted in the present case. The appeal is dismissed on merits.' 14. This Tribunal in Duraline India Pvt. Ltd. v. Commissioner of Central Excise, Goa [2009 (237) E.L.T. 689 (Tri.- Mumbai)], Rubberwood India (P) Ltd. v. Commissioner of Customs (Appeals), Cochin [2006 (206) E.L.T. 536 (Tri.-Bang.)], Goodyear India Ltd. v. Commissioner of Customs, New Delhi [2002 (150) E.L.T. 331 (Tri.-Del.)], Commissioner of Central Excise, Bolpur v. Bhandigurhi Tea Estate [2001 (134) E.L.T. 116 (Tri.-Kolkota)], Wood Working Centre v. Collector of Central Excise, Indore [1996 (85) E.L.T. 201 (Tribunal)] and Rohit Pulp & Paper Mills Ltd. v. Collector of Central Excise [1991 (53) E.L.T. 440 (Tribunal)] has consistently been reiterating this position. The decision of the Tribunal in re : Rohit Pulp & Paper Mills Ltd. has been affirmed by the Hon'ble Supreme Court in dismissing the appeal of Revenue in Civil Appeal No. 7953 of 1995 by order of 18th March, 1996 [1996....
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....ic indulgence. 78. The discipline of precedent is not a matter of personal predilection; it is an institutional necessity. Stare decisis et non quieta movere which means to stand by what is decided and not to disturb what is settled, is a working rule which secures stability, predictability and respect for judicial outcomes. The law cannot change with the change of the Bench." (emphasis supplied) 71. The appellant's claim that the refund rejection defeats the very objective of the exemption scheme designed to promote exports and the appellant having discharged service tax on eligible services and effected exports without any rebate or drawback, is fully entitled to the refund amount claimed also has merits. It is observed that the Jurisdictional High Court has in its decision in CCE Tuticorin v Vedanta Ltd, 2025 (28) GSTL 91 (Mad) observed as under: 20(b) It is cardinal principle of law that only goods are to be exported and not taxes. Reliance in this regard is placed on the judgment of the Hon'ble Delhi High Court in the case of TMA International (P.) Ltd. v. Union of India [2020 (35) G.S.T.L. 22 (Del.)]. In view thereof as well, inasmuch as there is no dispu....
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.... to notice of all concerned for compliance. In any event, if the Department has not adhered to the same, it can only be considered as indolence and that cannot be to the peril or detriment of the appellant as it is settled that assessee cannot be made to suffer on account of illegal act of departmental authorities. The decision in Kuil Firework Industries v. CCE, 1997(95) ELT 3 (SC) refers in this regard. 73. Admittedly, in the instant claims, there is no dispute on the eligibility of the appellant to claim refund of service tax on the services rendered by AAI. No case has also been made out on merits that the said services are ineligible input services and the claims have been rejected on the bar of limitation. In view of the discussions and reasons stated above, I am of the considered view that the impugned orders in appeal cannot be sustained and are liable to be set aside. Ordered accordingly. Inasmuch as the matter stands decided in the appellant' s favour both on merits and on the aspect of the claims being validly filed, and since the refund claims pertain to nearly fifteen years ago, the concerned refund sanctioning authority is directed to sanction the refund alongwith ....
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....g bill etc are submitted, these are readily verifiable at the Department's end as the exports have already taken place and such details are already available with the Department, and if the Department were to so further desire, inspect and examine the same at the declared premises, at all reasonable time, by the Central Excise Officer authorised in writing by the jurisdictional Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, as mandated in the notification. Hence, when the appellant has filed the service tax refund claim in Form A-1 along with the original invoice of the service provider, payment details, proof of payment of value of service and the service tax thereon and details of exports along with the certificate from the chartered accountant who audits the appellant's annual accounts as per provisions of the notification within one year from the date of export, in my considered view, that amounted to not just substantial compliance, but rather full compliance as per the conditions of the said notification. Therefore, the non-submission of proof of export with the claim when originally filed by the appellant cannot be ....
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....d in the Central Excise Manual, an incomplete claim cannot be scrutinised for admissibility, leading to delay in sanction and potential interest liability. D) Computation of the limitation period: Adhering to the doctrine of stare decisis, in the face of overwhelming binding precedents, I hold that the date on which the claims were originally submitted by the appellant, is to be considered for computing the period of limitation of one year, and indisputably since the said claims were initially filed within the said period, the filing of these claims by the appellant is to be considered as within the period of limitation and thus validly filed. Therefore, I disagree with my Ld. Brother's finding that the impugned order rejecting the Appellant's claims on the grounds of time-bar is legal and proper and warrants no interference. E) Direction on payment of interest: Inasmuch as the matter stands decided in the appellant' s favour both on merits and on the aspect of the claims being validly filed, and since the refund claims pertain to nearly fifteen years ago, the concerned refund sanctioning authority is directed to sanction the refund alongwith appropriate interest ....
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....application of law, as observed in Mohammad Hanif Jainum Khalifa Vs State of Karnataka - 2026 INSC 565, dated 27.05.2026 (Supreme Court)? C. Whether, for the purposes of clause 3(c) of the Notification, scrutiny of the mathematical correctness of a refund claim is confined to the declaration contained in column (4) of the Form and the Chartered Accountant's certificate, on the footing that documents evidencing the amount of service tax paid and the use of service in exports are not specifically notified; and whether, upon filing of the Form, the burden shifts to the Department to establish ineligibility of the refund, inasmuch as the exporter has agreed to make such records available for inspection by the Central Excise Officer at the declared premises and at reasonable times; or, whether the burden to establish entitlement continues to rest upon the claimant, having regard to the settled principles governing exemptions, refunds, and limitation and that exemption is in the nature of an exception to the levy of tax, and refund is only a statutory right capable of being regulated by the provisions of the Act and not a fundamental or constitutional right, as held in Union of India ....
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....d and Article 13(3) of the Constitution defines "law" to include any ordinance, order, bye-law, rule, notification, custom or usage having in the territory of India the force of law, and whether the same is analogous in legal force to the Handbook of Procedure issued under the Foreign Trade Policy for implementing the provisions of the Foreign Trade (Development & Regulation) Act; or, that the Manual can be equated to an administrative instruction and is not binding on the Tribunal? G. Whether this Tribunal ought to interfere with the amplitude of discretionary jurisdiction exercised by the Original Authority in returning the refund claim under paragraph 2.4 of Chapter 9 of the Manual, on the basis of the material facts on record, including repeated filing of deficient claims, and substitute its own view merely because another view is possible, particularly when the Tribunal exercises only a limited jurisdiction in this regard [Shivamma (Dead) by LRs Vs Karnataka Housing Board & Ors. - 2025 INSC 1104]? Whether it is not equally well settled that decisions are authorities for what they actually decide on their own facts, as held in Union of India & Anr. Vs Major Bahadur Singh [(2....
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....icially noticed for all purposes of construction or obligation, leading to the conclusion that return of the claim application was not contemplated by the Act or the Rules; or, whether the ratio decidendi and the propositions of law necessary for deciding the issues in that case did pertain to the return of documents, after being examined under the well-settled theory of precedents stated by the Apex Court in Secunderabad Club Vs CIT [2023 SCC OnLine SC 1004; 2023 INSC 736, para 14], and consequently, judicial discipline required that the judgment be followed? K. Whether, where the statute requires an act to be performed in a specified manner and prescribes consequences for non-compliance, such requirement is mandatory, as stated in State of Jharkhand & Ors. Vs Ambay Cements & Anr. - 2004-TIOL-89-SC-CT; or whether compliance by filing the application within time would suffice, and filing of the supporting documents is merely procedural in nature, so that the refund can nevertheless be sanctioned? L. Whether the powers of the Tribunal in the present appeal, extend to reversing concurrent findings of fact recorded by two subordinate authorities, where such findings are based on....
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....ity & Ors. [AIR 1972 SC 749]; Or whether the Proper Officer is bound to grant the refund once the refund application is filed in time? On Equal Treatment to Revenue and Bias P. Whether, in disputes concerning Revenue and matters bearing upon the public exchequer involving public interest, the cause of Revenue is required to receive equal treatment from the Tribunal, by way of the same seriousness, degree of procedural fairness, doctrinal scrutiny, and application of legal principles as the private interest of the assessee before adjudicatory forums; or whether such an approach would travel beyond the statutory role assigned to the Tribunal and shifts the Tribunals role from an impartial arbiter to a secondary advocate for the State which further amounts to assuming fiscal guardianship, as stated by the learned Member (Judicial)? Q. Whether the sweeping observations regarding the circumstances in which taxpayers institute appeals against the actions of the respondent-Revenue, made by the learned Member (Judicial) in paragraph 56 of his order, perpetuate a negative stereotype about the functioning of departmental officers, impair the manifest fairness of the appellate proces....
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....l) does not discern or arrive at any contrary finding on these issues on the basis of facts and law. Consequently, these aspects do not arise as points of difference between the two opinions, as they remain exclusive findings determined only in my dissenting order. That said, what is now presented as points of difference as framed by the Ld. Member (Technical) appear to include fresh observations supported by additional judicial precedents. Neither these observations nor the additional precedents formed part of, or were relied upon, in the order penned by the Ld. Member (Technical). They therefore could not have been matters for consideration while rendering my dissent and hence, cannot now be treated as points of difference arising from the two orders. An order must stand on the reasons recorded in it. It cannot be supplemented post facto, at the stage of recording points of difference, by fresh observations or fortified by authorities which did not form part of the original reasoning. Points of difference can neither be a commentary of counter observations nor can they bolster the original order. Rather, points of difference, distil and divulge the divergence discernible from the....