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TMI Blog2018 (5) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... vices used in the goods exported by them beyond one year from the date of LEO as specified in the N/N. 41/2012-ST - appeal dismissed - decided against appellant. - Appeal No. C/30219/2017 - Final Order No. A/30503/2018 - Dated:- 26-4-2018 - Hon ble Mr. P. Venkata Subba Rao, Member (Technical) Shri Srinivasa Rao, Senior Manager for the Appellant Shri Guna Ranjan, Superintendent (AR) for the Respondent ORDER [ Order Per : P. Venkata Subba Rao ] The appellant is registered with Service Tax Department for rendering Business Auxiliary Services. They filed a refund claim of service tax paid on various services provided by their service providers for export of Indian milling wheat during the months of October, 2012 to December, 2012 in terms of Notification No. 41/2012- ST dated 29.6.2012. Service tax is governed by Chapter V of the Finance Act, 1994, as amended. Section 94A of this Act, empowers the Central Government to, when goods or services are exported, grant rebate of service tax paid on taxable services which were used as input services. In exercise of these powers, the Central Government issued Notification No. 41/2012-ST granting rebate by way of refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of service tax as to be filed within one year from the date of the LEO. Learned Departmental Representative relied upon the case of Commissioner of Central Excise, Coimbatore Vs. GTN Engineering India Limited [2012 (281) ELT 185 (Mad.)] in which the Hon ble High Court of Madras held that to claim refund for exports, the relevant date has to be the date of LEO. He also relied upon the case of M/s. Banswara Syntex Ltd. Vs. Commissioner of Central Excise, Jaipur II [2017 (345) ELT 547 (Tribunal- Del)] where it was clearly held that refund claims after one year from the date of export are clearly time-barred. 6. I have considered both the arguments and perused the records of the case. There is no disagreement on the facts of the case. The appellant exported goods and claimed refund of the Service Tax paid on the services which went into production and export of those goods. The legal provision under which such a refund can be claimed is Section 94A of the Finance Act, 1994 read with Notification No. 41/2012-STdated 29.06.2012 and the legal time limit is one year from the date of LEO. 7. The appellant filed their refund claim after the date and there is no provision in the notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be three years. Learned counsel refers to certain decisions of this Court to that effect. We shall assume for the purposes of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether it is permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered in a different factual background. It was a case where the refund clam was filed beyond the period of six months which was the limit prescribed at the relevant time, but within the period of one year. When such refund claim was still pending, law was amended. Section 11B in the amended form provided for extended period of limitation of one year instead of six months which prevailed previously. It was in this background, the Bombay High Court opined that limitation does not extinguish the right to claim refund, but only the remedy thereof. The Bombay High Court, therefore, observed as under: 32. In present case, when the exports were made in the year 1999 the limitation for claiming rebate of duty under Section 11B was six months. Thus, for exports made on 20th May 1999 and 10th June 1999, the due date for application of rebate of duty was 20th November 1999 and 10th December, 1999 respectively. However, both the applications were made belatedly on 28th December 1999, as a result, the claims made by the petitioners were clearly time-barred. Section 11B was amended by Finance Act, 2000 with effect from 12th May 2000, wherein the limitation for applying for refund of any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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