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TMI Blog2024 (7) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... 03/03/2009 is (incorrectly) sought to be applied to the claim for the period prior to 03/03/2009 and the claim treated as time barred in the light of the six months time limit set by the notification, it will not be legally correct - In the light of the judgment of Supreme Court in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [ 2014 (4) TMI 870 - DELHI HIGH COURT ] clarifying the legal position, it is clear that a period of limitation mandated through a notification cannot prevail over the statutory period - there are no error in the impugned order and uphold the same. Non-availability of list of approved services from the approval committee along with the refund claim as per N/N. 9/2009-ST dated 03/03/2009, (from 03/03/2009 upto June 2009), which is a mandatory requirement as per the notification - HELD THAT:- It is found that the respondent is silent about the same. The said condition is a mandatory one affecting the essence or substance of the said notification granting exemption. A Constitution Bench of 5 Judges in the case of CCE VERSUS M/S HARI CHAND SHRI GOPAL [ 2010 (11) TMI 13 - SUPREME COURT] held that ' A provision providing for an exemption, concession o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2008 to June 2009. The adjudicating authority had rejected the refund stating that the claim was covered under Notification No. 9/2009-ST dated 3.3.2009 and hence the refund of services pertaining to the period prior to that date i.e. 3.3.2009 which is the effective date of the above Notification was not eligible and also that certain invoices on which service tax was paid prior to six months are hit by time limit specified under the said Notification. Aggrieved by the said order, the respondent preferred appeal before the Commissioner (Appeals) who vide the order impugned herein allowed the appeal of the respondent. Hence department has filed the present appeal before this Tribunal. 3. Shri Harendra Singh Pal, learned AR appeared for the appellant-department and Smt. Radhika Chandrasekar, learned Advocate appeared for the respondent. 3.1 The learned AR supported the findings in the Order in Original. He stated that Notification No. 4/2004-ST dated 31/03/2004 was rescinded and superseded by notification No. 9/2009-ST dated 03/03/2009, by which duty exemption was to be given as a refund. The notification provided that exemption or refund of service tax paid on the specified servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department that the claim made under Section 11B is not correct and is hit by limitation of time provided under the Notification 9/2009-ST, defies the very intention of the Government to extend exemption from payment of service tax to the services provided within the SEZ. She relied on the judgment of the Tribunal in Intas Pharma Vs Commissioner of Service Tax, Ahmedabad [2013 (32) STR 543 (Tri.-Ahmd)], to state that the immunity to service tax provided under section 7 or 26 of the 2005 Act cannot be eclipsed by the procedural prescriptions of Notification No.9/2009. 4. Heard both sides. We find that this is a case where the department is aggrieved by the learned Commissioner (Appeals) order on the following grounds; (i) applicability of the time limit as per section 11B of the Customs Act 1962 read with section 83 of the Finance Act 1994, for a refund filed under Notification No. 4/2004-ST dated 31/03/2004, on 30.9.2009, for the period October 2008 to 02.03.2009, by adopting the procedure under Notification No. 9/2009-ST dated 03/03/2009. (ii) the respondent has not made available the list of approved services from the approval committee along with the refund claim as per Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period from 03/03/2009 when notification no. 9/2009-ST came into effect, we find that the respondent is silent about the same. The said condition is a mandatory one affecting the essence or substance of the said notification granting exemption. A Constitution Bench of 5 Judges in the case of Commissioner of Central Excise, New Delhi Vs Hari Chand Shri Gopal [2010 (260) E.L.T. 3 (S.C.)] held as under; 22. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the Statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or subs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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