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TMI Blog2017 (1) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... . 07/12/2008 being entry number 19 in the schedule to N/N. 41/2007 is clarificatory in nature. Accordingly, following the ruling of Hon’ble Bombay High Court in the case of WNS Global Service (P) Ltd. Versus Commissioner of Service Tax, Mumbai [2008 (1) TMI 94 - CESTAT, MUMBAI], the appellant is entitled to refund of input services including C & F services received prior to 07/12/2008 as the same have been utilized for the purpose of export of goods. The other ground of rejection also does not stand that the appellant also availed duty drawback in view of deletion of proviso '(e)' in N/N. 41/2007 vide amending N/N. 33/2008. Refund allowed - appeal allowed - decided in favor of appellant. - ST/683 & 1458/2010-EX[SM] - A/71116-71117/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Orders-in-Original, the refund claims were rejected on the ground, that the appellant have also claimed duty drawback. Accordingly, they are not eligible for refund of the input services utilized in export by virtue of Clause (d) in Notification 41/2007 wherein under the it was provided - the said goods have been exported without availing drawback of Service tax paid on the specified under the Customs, Central Excise duties Service Drawback Rules, 1995. The other grounds for the rejection of the claim was that C F Services have been added to the Schedule under Notification No.41/2007 with effect from 07/12/2008 and as the transactions related to previous period that is prior to 07/12/2008 they would not entitled to refund for the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals). On such facts, this Tribunal observed that the refund claim filed by WNS Global on 26/04/2006 onwards will be governed by the rules as it stood on those dates. The substituted Rule 5, nowhere suggests or states that it will apply for exports made after 14/03/2006 (the date on which the rule substituted) hence any claim filed on or after 14/03/2006 which satisfy other requirements of the rules and notification issued thereunder, cannot be turned down on a ground which is a condition or requirement of the rule or notification. A statute cannot be treated retrospectively mainly because it relates to the past action. A statute which takes away or impairs vested rights acquired and existing laws, or creates a new obligatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Bombay High Court confirmed the ruling of the Tribunal observing as follows: 9. The above finding of the CESTAT cannot be faulted because substituted Rule 5 of the Cenvat Credit Rules, 2004 does not make any distinction between exports made prior to 14/03/2006 or after 14/03/2006. In other words, as per the substituted Rule 5 refund of unutilized cenvat credit in respect of exports effected in the past is available to the manufacturer as well as provider of output service. Proviso to Rule 5 as it stood prior to the amendment on 14/03/2006 clearly provides that refund of unutilized credit is available to the manufacturers as also by the provider of output service subject to the conditions set out therein. As noted earlier the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o time by way of verification introducing further entries. Similarly, Clearing Forwarding Agent Services) were also introduced with effect from 07/12/2008 and the amending notification states - the Central Government hereby makes following further amendment in the Notification of Gol in Ministry of Finance No.41/2007 Service Tax dated 06/10/2007 namely. Thus, it is evident that the addition of C F Service vide Notification No.07/12/2008 being entry number 19 in the schedule to Notification No.41/2007 is clarificatory in nature. Accordingly, following the ruling of Hon ble Bombay High Court in the case of WNS Global Service (P) Ltd. Versus Commissioner of Service Tax, Mumbai (Supra), I hold that the appellant is entitled to refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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