9911796707
TMI Blog2013 (11) TMI 1502X X X X Extracts X X X X X X X X Extracts X X X X ..... of implying necessary changes into a section of one Act made applicable for purposes of another Act cannot go to such extent to defeat the very objective of a beneficial scheme like grant of refund due on exports. After coming to the conclusion that clause (a) to Explanation B will not apply, I have sequentially gone through the other clauses and I find that the most appropriate clause that will apply in this particular case, is clause (f), that is date of payment of service tax. In this case the applicant filed his claim within one-year from the date of payment of service tax and, therefore, I am of the view that the claim is filed within the time-limit and the appellant is eligible for refund - Decided in favour of assessee. - ST/66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Ltd. (supra), the Tribunal had decided that the time-limit prescribed under Section 11B will not apply for granting refund under Rule 5 of Cenvat Credit Rules, 2004. Revenue had appealed against the said decision before the Hon ble High Court of Madras and the Hon ble High Court of Madras vide decision reported at 2012 (281) E.L.T. 185 (Mad.) set aside the order of the Tribunal and held that the time-limit as provided in Section11B will apply. 5. Now, the claim is re-examined by the adjudicating authority in the light of the decision of the Madras High Court and the claim has been rejected as time-barred. The reasons given is that the refund claim has been filed after more than one year from the date of export and hence it is time barr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Explanation B will apply in all cases of export of goods. He argues that clause (f) of the Explanation will apply in the facts of this case. He submits his detailed arguments on this issue as follows. 9. Learned Counsel submits in this case, the appellant pays commission to their agents abroad for canvassing sales as well as realizing the sale proceeds. So naturally, there will be some time gap between the date of export and date of payment of commission. He points out that service tax under Section 66A is to be paid when the appellant makes payment to the foreign agents and not when service was received. He submits that refund claim cannot be submitted before paying service tax which becomes due when commission is paid. 10. The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d he argues that the correct clause of Explanation B that should apply is clause (f), that is to say, the limitation should run from the date of payment of service tax. He submits that he has filed the refund claim within one year from the date of payment of service tax and, therefore, the claim is strictly within the provisions of Section 11B and is not time-barred and it should be granted. 11. On a query from the Bench about the finding in the adjudicating order that the appellant has not proved that he could not utilize the credit on any domestically cleared goods, the learned Counsel submits that they are exporting their entire products and for local clearance, the product is exempted from duty and there is no question of utilization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder prescribes that the time-limit under Rule 11B shall be followed. In view of the findings of the Madras High Court that the date of export is the relevant date for computing the one-year period, their claim is not maintainable. In this case, the refund claim was filed after one-year from the date of export and hence, the claim is time-barred. 14. I have considered submissions on both sides. I find that the decision of the Madras High Court in the case of GTN Engineering (I) Ltd. (supra) was with reference to Cenvat credit of duty paid on inputs and capital goods as is seen in Para 4 of the said judgment. In the case of inputs and capital goods, there is no difficulty in applying clause (a) to Explanation B of Section 11B because ..... X X X X Extracts X X X X X X X X Extracts X X X X
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