2019 (2) TMI 879 – CESTAT MUMBAI – TMI – Refund of accumulated CENVAT credit – export of service as per Rule 6A of Service Tax Rules, 1994 – non-submission of declaration as required under N/N. 39/2012-ST dated 20.06.2012 – Held that:- As found from the show-cause notice, appellant had made presented its claim in conformity to such procedure along with submission of documents, but it had not made a pre-declaration before the jurisdictional authority prior to the date of export, which appellant claims virtually to be imposable considering the nature of services provided by it i.e. data analysis, category of which is referred in the preceding paragraph. Para 3.4 of the said notification under sub-para (b) indicates that the jurisdictional authority, having regard to the declaration, if satisfied that the claim is in order, shall sanction the rebate either in whole or in part but it is quite confusing if the same notification indicates the filing of declaration before export or declarati
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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 – 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.
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Appeal allowed – decided in favor of appellant. – APPEAL NO. ST/86391/2018 – A/85292/2019 – Dated:- 14-2-2019 – 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
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e laws reported in 2010-TIOL-1307- CESTAT-AHM, 2013-TIOL-2480-CESTAT-AHM as well as other decisions, submitted that non-observance of procedural condition in the case is of technical nature and cannot be used to deny substantive concession. Referring to Notification No. 39/2012-ST, he also pointed out that Rule 2 provides for conditions and limitations 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
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e Commissioner (Appeals). 4. Learned Authorised Representative for the department, in response to such submissions, has supported the reasoning and rationality found in the order of the Commissioner (Appeals) in stating that not only this refund claim but successive refund claims were also rejected by the Commissioner (Appeals) on some other 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 bo
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posable considering the nature of services provided by it i.e. data analysis, category of which is referred in the preceding paragraph. Para 3.4 of the said notification under sub-para (b) indicates that the jurisdictional authority, having regard to the declaration, if satisfied that the claim is in order, shall sanction the rebate either in 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 requ
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ebate claim was 16.09.2013, as found from the order of the Commissioner (Appeals). This being so, the refund claim having been filed on 16.09.2013 is within the period of limitation. Otherwise also, in view of the decision reported in 2016 (46) STR 858 (Tri.-Mumbai) in the case of Oceans Connect India Pvt. Ltd. Vs. Commissioner of Central Excise, 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. Th
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