9911796707
TMI Blog2022 (6) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... is within the time limit of one year from the date of payment of service tax. A similar issue came up before Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, KANPUR VERSUS M/S PACIFIC LEATHER FINISHERS [ 2016 (2) TMI 727 - CESTAT ALLAHABAD] where it was held that limitation cannot start to run unless right to receive a claim or refund crystallized. In the present case, the right to claim/refund under Notification No. 41/2007-S.T. crystallized only when the service tax was deposited in October, 2008. Thus, the refund claim was filed within six months on 30-3-2009. Accordingly, we hold that the refund claim is within time. As issue has already been settled in favour of the appellant wherein it has been held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 17/08-ST dated 01.04.2008. Department has issued five Show Cause Notices as the Appellant had not allegedly fulfilled the conditions as laid down in the said Notification. The said refund claims were rejected vide Orders-In-Original all dated 28.10.2010 on merit as well as on the ground of time bar under the provisions of Section 11B of the Central Excise Act, 1944. Aggrieved by the said orders, the appellant filed appeal before the Commissioner (Appeals) who also rejected the appeals. Hence, the present appeals. 02. Shri Amal Dave, learned counsel appearing on behalf of the Appellant submits that during the period April 2008 to March 2009, service of commission agent located in foreign countries was availed by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Service and no service tax have been paid on such services during the period April 2008 to March 2009, when the export were made, the appellant had no right to claim refund at that time. The Notification No. 41/2007-ST does not contemplate a situation where a refund claim has to be filed by the exporter even if service tax was not paid because the pre-condition for claiming any refund is payment of any amount as tax or duty. 2.2 He also submits that the period of limitation for claiming refund on commission agent service cannot be computed prior to the date of payment i.e. 31.10.2010. The refund of Service tax was governed by Section 11B of the Central Excise Act, 1994 as made applicable to the service tax matter, when this statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) denied the refund claims solely on limitation. There is no dispute of the fact that the goods have been exported by the appellant during the period April 2008 to March 2009 by utilizing the services on which service tax was payable for the exported goods. The assessees have raised the contention that payment of service tax on commission agent service was made only on 31-3-2008 and 21.04.2010 and therefore refund claim is within the time limit of one year from the date of payment of service tax. We find that a similar issue came up before Tribunal in the case of Commissioner of Central Excise Service tax, Kanpur Vs. Pacific Leather Finishers 2016 (43) S.T.R. 273 (Tri. - All.) (supra) wherein Tribunal observed as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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