2016 (2) TMI 771 - AT - Service Tax

Quantum of Refund of service tax on services provided by commission agent located outside India - for export of goods - 2% of the FOB value or 10% of the FOB value - NOTIFICATION No 41/2007 as amended - whether amendment is retrospective or prospective - Held that - By substitution subordinate legislation do not cause anomaly. It is true that if the subordinate legislation had intended that the benefit of 10% shall be allowed only from the date of substitution through Notification dated 07.12.2008 they would have expressly stated that the notification shall have prospective effect. But that is not done. Therefore there cannot be presumption of prospective effect since substitution has a beneficial grant. Reliance of the appellant on the decision in Indian Tobacco Association 2005 (8) TMI 113 - SUPREME COURT OF INDIA is appropriate for the incentive granted to the exporting sector. When the subordinate legislation takes recourse to the process of substitution that enlarges the scope of the benediction of the notification. - The expanded scope of the notification covers the vision of the legislature to boost the export scheme. Therefore appeal is allowed.

Summary

Issues:
Interpretation of Notification No.17/2008-ST and Notification No.33/2008 regarding refund percentage under the law.

Analysis:
The judgment dealt with the issue of the refund percentage applicable to the appellant under Notification No.17/2008-ST and Notification No.33/2008. Initially, the Revenue restricted the refund to 2% of FOB under the former notification. However, the latter notification, dated 07.12.2008, expanded the percentage to 10% by substituting the words "10%" for "2%," which the appellant argued should be beneficially granted to them. The learned consultant for the appellant contended that the substitution of words is a common mode of amending subordinate legislation, as established by the apex court in the case of Government of India Vs Indian Tobacco Association. He emphasized that unless expressly stated otherwise, the benefit of the higher percentage should not be denied to the claimant. The appellant's position was that the substitution notification should not be interpreted as curtailing benefits to beneficiaries.

The Revenue, on the other hand, supported the Adjudication order, which restricted the refund to 2% under the initial notification. After hearing both sides and examining the records, the Tribunal agreed with the appellant's argument. The Tribunal acknowledged that subordinate legislations are commonly amended by substitution and that such amendments do not create anomalies. The Tribunal highlighted that if the legislature had intended to deny the higher percentage benefit to claimants, it should have been explicitly stated. Since the notification did not specify a prospective effect and the substitution was beneficial, the Tribunal found in favor of the appellant. The Tribunal emphasized that the process of substitution, in this case, aimed to boost the export scheme and should be interpreted as enlarging the scope of the notification rather than restricting benefits. Ultimately, the appeal was allowed, granting the appellant the benefit of the higher percentage refund as per the substituted notification.