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TMI Blog2015 (6) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... e the refund claim was filed, the goods had already been exported out of India, refund in respect of 11 consignments cannot be denied just because the same were physically exported in October 2007. Another ground for denial of refund is that the copies of shipping bills duly certified by the customs officers regarding export of the goods were not enclosed alongwith the refund application. While it is true that alongwith the refund application, only self certified copies of shipping bills were enclosed, but as mentioned in the impugned order-in-appeal, the customs certified copies were produced subsequently. I am prima facie of the view that non-production of customs certified copies of shipping bills alongwith the refund application is only a remediable defect for which the refund claim cannot be denied when subsequently the customs certified copies of shipping bills were produced. A substantive claim cannot be denied for a minor procedural violation. There is merit in the appellants plea that the refund order has been correctly sanctioned by the Asst. Commissioner. - Appeal No. E/1839/2009-EX(SM) - Final Order No. 51916/2015-EX(SM) - Dated:- 11-6-2015 - SHRI ASHOK JINDAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as quantified the refund claim to be rejected on the grounds mentioned in the Appellate order. In absence of such quantification, rejection of the entire refund claim is highly irregular. (2) The Appellant had filed refund claim for July 2007 - September 2007 quarter in respect of the consignments exported where the let export order had been passed during this period. As per Hon ble Supreme Court s judgment in case of Union of India vs. Asian Food Industries reported in 2006 (204) E.L.T. 8 (S.C.), the relevant date of export is the date of let export order. (3) Notification No. 41/07-ST dated 6/10/07 prescribes conditions for grant of refund of service tax on services used for export of goods and clause (e) of para 2 provides that the said goods shall be deemed to have been exported on the date on which the proper officer of customs makes an order permitting clearance and loading of the said goods for export under Section 51 of Customs Act, which is nothing but, the date of let export order. The Appellant had relied on clause (e) of para 2 of the Notification No. 41/07-ST dated 6/10/07 as part of the refund claim pertains to unutilised service tax credit. (4) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the claim in this case was for July 2007 - September 2007 quarter, the same can be only for the goods actually shipped during this period while the refund claim includes the exports where actual shipments were after September 2007. (2) The Appellant did not submit the copies of Shipping Bills, certified by the Customs Officers alongwith the refund claim. (3) The date of export is the date on which the ship containing the export goods leaves. 3. I have carefully considered the submissions from both the sides and perused the records. The Assistant Commissioner under Rule 5 of Cenvat Credit Rules, 2004 vide order dated 23/6/2008 had allowed cash refund of the accumulated credit amounting to ₹ 39,87,276/- in respect of clearances under ARE-1 ARE-2 for exports during July 2007 September 2007 period. The CCE (Appeals) has set aside the Assistant Commissioners order and disallowed the refund on the following grounds - (1) The refund claim under Rule 5 of Cenvat Credit Rules, 2004 is governed by Notification No. 5/2006 - CE (NT) dated 14/3/06 issued under this rule according to which exporter (other than a 100% EOU) is required to file refund claim not mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices Rules, 2005, as the case may be. 2. The claims for such refund are submitted not more than once for any quarter in a calendar year Provided that where, - (a) the average export clearances of final products or the output services in value terms is fifty percent or more of the total clearances of final products or output services, as the case may be, in the preceding quarter; or (b) the claim is filed by Export Oriented Unit, the claim for such refund may be submitted for each calendar month. 3. The manufacturer or provider of output service, as the case may be, submits an application in Form A annexed to this notification to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, in whose jurisdiction, - (a) the factory from which the final products are exported is situated, along with the Shipping Bill or Bill of Export, duly certified by the officer of customs to the effect that goods have in fact been exported; or (b) the registered premises of the service provider from which output services are exported is situated, along with a copy of the invoice and a certificate from the bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004, subject to fulfilment of conditions prescribed in the Notification, has to be filed not more than once for any quarter in a calendar year in a form prescribed in the notification, alongwith the relevant documents, and within the limitation period prescribed in Section 11B of Central Excise Act, 1944, (b) the refund allowed is of Cenvat credit in respect of input or input services used in the manufacture of finished goods cleared for export under bond or letter of undertaking, and the same is not linked with the date on which the ship or aircraft in which the export goods are loaded leaves India , which, as per Explanation (B) to Section 11B is the relevant date for counting the limitation period of one year prescribed for filing of the refund claim ; and (c) While the refund claim can be filed in respect of goods cleared for export under bond/letter of undertaking during a quarter, it has to be filed only after export of the goods out of India, as the application for refund must be accompanied by shipping bills duly certified by customs officers that the goods have been exported. 5. In this case, out of 70 export consignments cleared for export during July Septemb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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