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TMI Blog2021 (11) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... on to Notification No. 41/2012-S.T. dated 29.06.2012, effective from 01.07.2012, for claiming rebate of Service Tax paid on taxable services received by an exporter of goods and used for the export of goods, reads as under: "Explanation. - For the purposes of this notification,- (A) "specified services" means - (i) in the case of excisable goods, taxable services that have been used beyond the place of removal, for the export of said goods; (ii) in the case of goods other than (i) above, taxable services used for the export of said goods; but shall not include any service mentioned in subclauses (A), (B), (BA) and (C) of clause (l) of rule (2) of the CENVAT Credit Rules, 2004; (B) "place of removal" shall have the meaning assigned to it in section 4 of the Central Excise Act, 1944 (1 of 1944); ..." 3. As seen above, the Notification allowed rebate of Service Tax paid on taxable services which have been used beyond the place of removal of the goods exported. The Department was of the view that after Let Export Order is issued, it is the responsibility of the shipping line to ship the gods to the foreign buyer. The exporter has no control over the goods and then the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such service tax shall be granted which has been denied, but which would not have been so denied had the amendment made by sub-section (1) been in force at all material times. (3) Notwithstanding anything contained in the Finance Act, 1994, an application for the claim of rebate of service tax under sub-section (2) shall be made within the period of one month from the date of commencement of the Finance Act, 2016." (Emphasis added) THE TENTH SCHEDULE (See Section 160) Notification No. Amendment Period of effect of amendment. (1) (2) (3) G.S.R. 519(E), dated the 29th June, 2012 [No.41/2012- Service Tax, dated the 29th June, 2012] In the said notification, in the Explanation, -in clause (A), for sub-clause (i), the following sub-clause shall be substituted and shall be deemed to have been substituted, namely:- "(i) in the case of excisable goods, taxable services that have been used beyond factory or any other place or premises of production or manufacture of the said goods, for their export;"; (b) clause (B) shall be omitted 1st day of July, 2012 to 2nd February, 2016 (both days inclusive). 6. The appellant then, in 2016, re-filed all their refund claims which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roversy and rejection of the refund claims as time-barred. That the amendment has been made to have retrospective application with effect from 01.07.2012; the intention of the Government is to grant benefit of rebate for the input services used for export. That sub-clause (2) of Section 160 ibid. states that in cases where the refund has been denied for the reason of applying interpretation of the pre-amended Notification No. 41/2012, such refund claims have to be allowed. 8.2.2 He submitted that sub-clause (3) provides that an application for refund claim in situations where the refund has been denied, as above, has to be made within a period of one month from the date of commencement of the Finance Act, 2016. That the Department has taken the view that when the refund claims have been returned to the appellant, it is not a situation where the refund claims have been "denied". The appellant had filed the refund claims after the Budget of 2016. That even if the appellant had not requested for return of their refund claims, the same would have been rejected in view of the scenario of law that existed in the pre-amendment period. 8.2.3 Learned Counsel for the appellant stressed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und, the Department ought not to have rejected the refund on flimsy grounds. The appellant, by requesting to return the refund claims, has not relinquished their right or remedy, but only sought to withdraw the claim to look for any other remedy. However, when the Government itself brought forth the remedy of retrospective amendment, the appellant has rightly sought the same by filing the refund claims accordingly. 8.4 He prayed that the appeals may be allowed. 9.1 Learned Authorized Representative Shri Vikas Jhajharia appearing on behalf of the respondent supported the findings in the impugned order. He specifically adverted to paragraph 16 of the impugned order to argue that the refund claims having been withdrawn by the appellant, it cannot be said that the refund was "denied" to the appellant. The proceedings were dropped in view of the said application for withdrawal by the appellant and therefore, the refund claims filed subsequently will not fall under the ambit of sub-section (2) to Section 160 of the Finance Act, 2016. 9.2 He argued that the impugned order does not call for any interference. 10. Heard both sides. 11. In Notification No. 41/2012 which was issued on 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of rejection of refund. If a litigation is at the stage of Show Cause Notice and there is a proposal for rejection, the Show Cause Notice has to be adjudicated after considering the amendment brought forth vide the Finance Act, 2016. It cannot be then said that the Adjudicating Authority has to first reject the claim and thereafter assessee has to file a fresh claim under the amended Notification of 2016. So also, if an order of rejection is pending before the First Appellate Authority or the Tribunal, it is not required to dismiss the appeal and direct the appellant to file a fresh refund claim. Since the decision in the impugned order is to deny the refund claim, the First Appellate Authority or the Second Appellate Authority, as the case may be, has to consider the amendment brought forth by the Finance Act, 2016 and then decide the appeal. The intention of the Government is very much clear from the Notification which is to grant refund retrospectively with effect from 01.07.2012. This cannot be frustrated by clinging on to technical formalities. 15. In the present case, the appellant had requested to return the refund claims only to see if other alternate remedies were ava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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