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TMI Blog2019 (3) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules. Details of which were listed in Table-II of Form A-4 of Notification No.12/2013-ST. The said claims were sanctioned by the adjudicating authority. The Revenue preferred appeals against the order sanctioningrefund in respect of services listed in Table-II, before the Commissioner (Appeals), on the premise that the adjudicating authority had sanctioned refund without ascertaining whether the refund had been claimed within the time period prescribed in clause (e) of para 3(III) of the said Notification as also the refund had been sanctioned without verifying the correctness of the distribution of credit between the SEZ and DTA unit as prescribed in clause (a) of para 3(III). The Commissioner (Appeals) did not find merit in either of the said contentions urged by the Revenue in its appeal and dismissed the same. The Revenue has preferred an appeal against the order of the Commissioner (Appeals) and has prayed that the matters be remanded to the adjudicating authority for verifying compliance with conditions in clause (a) and (e) of Para 3(III) of Notification No.12/2013-ST. 2. Shri Sameer Chitkara, Ld. Additional Commissioner (AR) appearing on behalf of the Revenue, reiterates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned, it was pointed out as required in the said clause, the turnover of the DTA and the SEZ units, for the previous financial years which forms the basis of distribution of credit for the purpose of grant of refund was duly furnished in Form A-4,filed along with the refund claim, additionally the adjudicating authority had as a practice required the assessee to furnish over emails, details of turnover for ISD distribution which were self certified as also certified by statutory auditors. 3.1 The counsel for the Respondent further submitted that the Commissioner (Appeals) had correctly held that on a plain reading of clause (e) to para 3(III) of Notification No.12/2013, the time limitation of one year from the end of the month in which actual payment of service tax was made by the SEZ unit to the registered service provider, did not apply to refunds cases covered by Table-II of Form A-4. It was submitted that services in respect of which refund was claimed under Table-II were common to the DTA and the SEZ unit, for which payment is made by the DTA unit to the registered service provider. In respect of such services there was no privity of contract between the SEZ units and the regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt of the ISD invoice. It was submitted that, in any case the order of the adjudicating authority could be interpreted as one where he had exercised the discretion vested with him under clause (e) and condoned the delay, in all cases where the claims were not filed within one year from the end of the month in which the DTA unit had made payment of service tax to the service provider, which was subsequently distributed by the ISD. It was further pointed out there is no stipulation in clause (e) to the effect that while exercising thediscretion of condonation the adjudicating authority had to record reasons in writing for exercising such a discretion. 3.3 It was further submitted that the Respondent could have alternatively claimed the very same refund in terms of Rule 5 of the Cenvat Credit Rules, 2004, as had been held by the co-ordinate bench of this Tribunal in the case of Barclays Global Service Centre Pvt. Ltd vs. Commissioner of Central Excise reported in 2013 (362) ELT 889. It was also submitted that the amounts quantified as being in dispute in the appeal filed by the Revenue was incorrect. 4. We have carefully gone through the submissions made by both sides and perused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are made between the SEZ unit and the DTA unit. Consequently, there is never an actual payment of service tax by the SEZ unit to the registered service provider. Accordingly, it has been contended that the time limitation prescribed in clause (e) is inapplicable to refunds covered by Table-II. In support of this contention the difference in the language of clause (d) and clause (e) as also the difference in the particulars to be provided with respect to refund claims under Table-I vis-à-vis that refund claims under Table-II was also highlighted. In the alternative it was submitted that there was no infirmity in the adjudicating authority having followed the very same basis which his predecessors have followed, which orders have been accepted and no appeal or review proceedings have been filed against the same. It was also submitted that clause (e) envisages thatthe time period for claiming refund can be extended by the Assistant Commissioner and that there being no obligation on the part of the adjudicating authority to set out reasons for extending the period, the order of the adjudicating authority could be construed as one having extended the period within which the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating authority has in his order taken cognizance of disclosure in the covering letter filed along with the refund claim, wherein in, it has been stated that in respect of cases where refund was being claimed after distribution of credit by ISD there were some instances where on the date of filing of the refund claim the payment date to the service provider by the ISD office for common services was beyond one year from the date of such payment. The relevant disclosure made in para 5 of the covering letter is extracted herein below; 5. ...................... There are certain instances wherein on the date of filing this refund claim the payment date to the service provider by the ISD office for common services i.e. the services other than services used exclusively for the authorized operations of SEZ have been beyond one year. In terms of S.No.3(III) (a) of Notification No.12/2013-ST dated 01.07.2013, refund claim for common services can be filed once ISD office have distributed the credit to SEZ unit, and hence we have ensured that refund claim is filed within one year from the date of ISD invoice to comply with the requirement of Sr.No.3(III)(e). Taking cognizance of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perversity. It is nobody's case that the exercise of discretion by the adjudicating authority is malafide or perverse, consequently the challenge to such exercise of such discretion is clearly unsustainable. 9. In our view, even if one was to presume for the sake of argument that the adjudicating authority had processed the refund claim without verifying the compliance with the condition regarding time limitation prescribed in clause (e) of Para 3(III), even then there is no warrant to remand the matter back to the adjudicating authority as has been contended by the Revenue, inasmuch as, even if the adjudicating authority had not exercised the jurisdiction vested with it, we can do so and we exercise the said discretion and condone the delay in filing the claim for refund, as prescribed in clause (e) of para 3 (III) of Notification No.12/2013. In our view any other interpretation would do violence to the objective with which the entire exemption mechanism by way of refund has been put in place. It is an undisputed position that the legislature has provided that there cannot be any tax incidence on any service which is used by an SEZ unit for undertaking its authorized operations. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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