2013 (8) TMI 254 - AT - Service Tax

Refund - Period of Limitation - main issue is whether the refund claim on account of the commission paid to the foreign agent filed by the appellant on the export of services by them has been filed within the prescribed time limit appellant s contention that the date of payment of duty would be relevant cannot be accepted Held that - The date of export is the relevant for filing the refund claim as decided in M/s Spark Engg. P. Ltd V/s Commissioner of Central Excise (2013 (1) TMI 433 - CESTAT NEW DELHI) - the specific date stands provided in respect of goods exported has to be adopted for the purpose of limitation appeal decided against the assessee.

Summary

Issues:
1. Refund claim of service tax on commission paid to foreign agents within the time limit under Notification No.41/07-ST.
2. Applicability of section 11B of Central Excise Act to service tax provisions for determining the relevant date for refund claims.

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Issue 1: Refund claim under Notification No.41/07-ST:
The appeal involved a dispute regarding the refund claim of service tax by M/s Sakay Overseas on commission paid to foreign agents. The claim was rejected due to being hit by the time bar limitation as it related to exports made prior to the quarter ending March 2009. The appellant contended that they had paid the service tax under reverse charge method on a specific date and filed the refund claim within the quarter ending from the date of payment, as per Notification No.41/07-ST. The crucial aspect was the date of payment of service tax for claiming the refund, which the appellant argued was within the prescribed time limit.

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Issue 2: Applicability of section 11B of Central Excise Act:
The appellant also raised an alternative plea under section 83 of the Finance Act, 1994, seeking the application of section 11B of the Central Excise Act to service tax provisions for determining the relevant date for refund claims. However, the tribunal examined the provisions of section 11B and clarified that the relevant date for goods exported out of India, where refund of excise duty paid is available, is the date on which the ship or aircraft carrying the goods leaves India. The appellant's argument that the date of payment of duty should be considered as the relevant date was rejected, as the specific date provided for goods exported must be adopted for limitation purposes.

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The tribunal, after considering the submissions and relevant provisions, concluded that the refund claim on commission paid to foreign agents was not filed within the prescribed time limit under Notification No.41/07-ST. Additionally, the tribunal found no merit in the appellant's claim to extend the limitation period based on the date of duty payment. Therefore, the appeal was dismissed, as the appellant failed to establish a case for sustaining the appeal.