9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (10) TMI 764 - AT - Service TaxRefund claim - rejection on the ground of time limitation - claims filed for a period beyond one year from the date of export of the goods - N/N. 17/2009 dated 7 July 2009 - HELD THAT - It is not possible to accept the contention of learned Counsel for the appellant that the delay in filing of the refund claim is merely a procedural lapse and can be condoned. There is nothing in the notification which may lead to such an inference. In fact, the notification categorically states that the claim for refund shall be filed within one year from the date of export of the said goods. The notification does not contain any provision for condoning the delay in filing the claim for refund. This issue was examined by the Gujarat High Court in PATEL CONSTRUCTION COMPANY A SOLE PROPRIETORSHIP FIRM VERSUS ASSISTANT COMMISSIONER, SERVICE TAX DIV 2017 (3) TMI 424 - GUJARAT HIGH COURT , though in connection with the provisions of Section 11B of the Central Excise Act, 1944. The Court observed that no relief can be granted contrary to the statute and, therefore, no direction can be issued to an Authority to condone the delay in filing the refund application. The Commissioner (Appeals) committed no illegality in rejecting the claim for refund made beyond the period of one year from the date of export of the goods - appeal dismissed.
Issues Involved:
1. Legality of rejecting refund claims filed beyond one year from the date of export under Notification No. 17/2009. 2. Whether the delay in filing refund claims can be considered a procedural lapse and condoned. Detailed Analysis: Issue 1: Legality of Rejecting Refund Claims Filed Beyond One Year The appellant challenged the orders passed by the Commissioner (Appeals), which rejected refund claims filed beyond one year from the date of export of goods under Notification No. 17/2009 dated 7 July 2009. The appellant, engaged in the export of various items, utilized services such as Clearing and Forwarding Agent Service, Terminal Handling Service, Customs House Agent Service, and Technical Inspection and Certification Service, and paid service tax on these services. The appellant filed refund claims as per the notification, which provides an exemption from service tax by way of refund, subject to conditions including filing the claim within one year from the date of export of the goods. The refund claims filed within one year were allowed, but those filed beyond one year were rejected. The appellant argued that the delay in filing the refund claims was a procedural lapse and should be condoned. However, the Department contended that the notification explicitly states that the claim for refund must be filed within one year from the date of export, and there is no provision for condoning the delay. Issue 2: Procedural Lapse and Condonation of Delay The appellant's counsel relied on the Mumbai Tribunal's decision in Commissioner of Central Excise, Pune Vs. Chandrashekhar Export, arguing that the delay in filing refund claims should be considered a procedural lapse and condoned. The Department, however, cited decisions from the Gujarat High Court and the Tribunal, including Patel Construction Company Vs. Assistant Commissioner of Service Tax, Commissioner of Central Excise, Indore Vs. K.S. Oils Ltd., and Salora International Ltd. Vs. Commissioner of Service Tax, Delhi, which emphasized that the time limit specified in the notification must be adhered to, and there is no provision for extending this time limit. The Tribunal examined the appellant's contention and found no basis for considering the delay as a procedural lapse that could be condoned. The notification clearly stipulates that the claim for refund "shall" be filed within one year from the date of export, with no provision for condoning the delay. The Tribunal referenced the Gujarat High Court's decision in Patel Construction Company, which held that no relief can be granted contrary to the statute, and no direction can be issued to condone the delay in filing the refund application. The Tribunal also discussed the provisions of Notification No. 41/2007, which was superseded by Notification No. 17/2009, noting that both notifications required the claim for refund to be filed within one year from the date of export. The Tribunal concluded that the time limit specified in the notification is a binding condition and cannot be ignored or considered a mere procedural requirement. The Tribunal cited various decisions, including Principal Commissioner of S.T. v. R.R. Global Enterprises Pvt. Ltd., Midex Global Pvt. Ltd. v. CCE, Indore, and Spark Engineering P. Ltd. v. CCE, Ghaziabad, which consistently held that the conditions stipulated in an exemption notification cannot be relaxed and must be strictly adhered to. The Tribunal dismissed the appeals, affirming that the Commissioner (Appeals) committed no illegality in rejecting the refund claims filed beyond the one-year period specified in the notification. Conclusion: The Tribunal upheld the rejection of refund claims filed beyond one year from the date of export, emphasizing that the time limit specified in Notification No. 17/2009 is a binding condition with no provision for condoning delays. The appeals were dismissed, reinforcing the necessity of adhering to the stipulated time limits for filing refund claims.
|
