M/s Aircheck India Pvt. Ltd. Versus CCGST, Mumbai West
Service Tax
2019 (2) TMI 879 – CESTAT MUMBAI – 2019 (24) G. S. T. L. 204 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 14-2-2019
APPEAL NO. ST/86391/2018 – A/85292/2019
Service Tax
DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL)
Shri Makarand Joshi, Advocate for Appellant
Shri O.M. Shivdikar, Assistant Commissioner (AR) for Respondent
ORDER
Refusal to grant rebate on the whole of duty paid on excisable inputs and taxable input services for providing export of services to the appellant by the Commissioner (Appeals) is assailed in this forum by the appellant.
2. Appellant's case, in brief, is that it had submitted a refund claim before the Dy. Commissioner of Service Tax, Division IV, Mumbai-II for refund of accumulated CENVAT credit due to export of service as per Rule 6A of Service Tax Rules, 1994 but the same was proposed to be rejected through a show-cause notice for non-submission of declaration as required u
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mitations for export of services and Rule 3 prescribes the procedure. The appellant could follow Rule 2 during the export of services, observance of Rule 3(1) in filing of declaration concerning description, quantity, value, rate of duty etc. of the inputs as well as inputs services actually required to be used in providing taxable service was almost impossible for the appellant to follow as it was engaged in data monitoring service that involved capturing the radio, television, cable and newspaper data received online from foreign clients and processing the same in terms of identifying variable before making the same fit for export and the market for such monitoring of radio, television, cable stations is fluid for which it was almost impossible for the appellant to credit the number of units that could be processed and exported in any given month. He also asserted that by its reply dated 29.01.2014 made in response to the show-cause notice, appellant had made its stand clear to the A
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grounds including the ground that refund claim was made for another period i.e. from October, 2013 to March, 2014 but CENVAT credit for a different period was availed by the appellant which also violates conditions and limitations prescribed in the said Notification No. 39/2012-ST. He further argued that limitations of one year being statutory stipulation for claiming refund, reference to it in the adjudication order cannot be considered to have been beyond the scope of show-cause, since the respondent-department cannot go against the prescribed rule for which interference in the order of the Commissioner (Appeals) is uncalled for.
5. Heard from both sides at length, perused the case record, relied upon judgments, written note of submission made by the appellant alone. Appellant is an exporter of services as per Export of Service Rules, 2005 read with Rule 6A of Service Tax Rules, 1994. Export of service is entitled to get rebate of Service Tax or duty paid on input services or inputs
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n whole or in part but it is quite confusing if the same notification indicates the filing of declaration before export or declaration under 3.4(a)(c) that such taxable services has been exported in terms of rule 3 of the said rules, along with documents evidencing such export! Further there is no stipulation in the notification that if the declaration prior to export is not made, then the same cannot be made in a future date or that departmental authority cannot call for the same in a subsequent day. Primary reason for grant of such rebate to the exporter is to encourage them for generation of foreign exchange for the country, where procedural requirement which is the handmade justice delivery, should not act as a stumbling block when such an irregularity of procedure is remediable. The decided case laws placed by the appellant support these observations.
6. The other ground of rejection found in the Commissioner (Appeals) is that the claim was time barred as the period under dispute
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e, Pune-III, in which Rule 5 and Section 11B were being analysed, refund filed on or after the last date of quarter, since to be filed on quarterly basis, is to be taken within the period of one year, since under Section 11B it cannot start on any date before the end of the quarter, the same has to be reckoned from next date when quarter ends. Therefore, without going into the intricacy of the issue as to if period of limitation can be invoked, if not cited in the show-cause as a ground for rejection of refund, there is no hesitation to hold a finding that appellant's refund claim was filed within the stipulated time. Hence the Order.
ORDER
7. The appeal is allowed and the order of the Commissioner of GST & CX (Appeals-III), Mumbai in Order-in-Appeal No. NA/GST AIII/ MUM/310-312/17-18 dated 27.12.2017 refusing refund claim of appellant for Rs. 4,78,969/- is here by set aside. Appellant is entitled to get the refund upon submission of such declaration for the disputed period and the r
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