2015 (11) TMI 615 - AT - Service Tax

Refund claim in terms of notification no. 41/2007-ST as amended by the notification no. 03/2007-ST and 17/2008-ST - Bar of limitation - Held that - In terms of the clause 2 (e) of the said notification, as amended, claim for refund shall be filed on a quarterly basis within 60 days from the end of the relevant quarter during which the said goods had been exported. The appellant has contended that it filed the refund claim within the time limit prescribed under section 11B of the Central Excise Act and the statutory time limit would prevail over the provision of a notification. In this regard, it is pertinent to mention that it is not the case of normal refund. It is a case of availment of exemption under notification 47/2007-ST. It is just that the exemption from service tax under notification no. 41/2007 is operationalized by way of refund of Service Tax paid. It is settled law that exemption under a notification is available subject to the fulfillment of all the conditions prescribed therein. Non-fulfillment of any of the conditions of exemption notification disentitles an assessee from the benefit of the notification. In the present case, the availability of exemption under notification no. 41/2007-ST as amended was inter-alia subject to the condition that the refund claim is filed on a quarterly basis within 60 days from the end of the quarter. As stated earlier, this condition has been violated by the appellant and so the appellant does not remain entitled to the benefit of the said notification under which the refund was claimed. - Decided against assessee.

Summary

Issues:
- Refund claim rejection as time-barred under notification no. 41/2007-ST.
- Applicability of statutory provisions over notification provisions.
- Interpretation of exemption under notification 47/2007-ST.
- Impact of non-fulfillment of conditions of exemption notification on entitlement to benefits.
- Relevance of cited judgments on unutilized CENVAT credit to the present case.

Analysis:
The case involved an appeal against the rejection of a refund claim amounting to Rs. 4,39,796 as time-barred under notification no. 41/2007-ST. The appellant argued that the refund claim was filed within the time limit prescribed under section 11B of the Central Excise Act, 1944, applicable to service tax. The appellant cited judgments to support the contention that statutory provisions would prevail over the provisions of a notification. However, it was noted that the appellant did not file the refund claim within the period specified in the notification, which required claims to be filed quarterly within 60 days from the end of the relevant quarter. The tribunal emphasized that the exemption under the notification was subject to fulfilling all prescribed conditions, and non-compliance would disentitle the assessee from the benefit. The tribunal clarified that the cited judgments on refund of unutilized CENVAT credit were not relevant to the present case involving exemption under a different notification.

The tribunal proceeded to decide the issue on merit due to the absence of representation from the appellant during the hearing. It was highlighted that the exemption under notification no. 41/2007-ST was operationalized through refund of service tax paid, subject to conditions like filing refund claims quarterly within the specified time frame. Since the appellant failed to adhere to this condition, they were deemed ineligible for the benefit of the notification under which the refund was claimed. Consequently, the tribunal found no infirmity in the impugned order and dismissed the appeal.