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TMI Blog2024 (9) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax paid was introduced as trade facilitation measure with an aim to expeditiously process and sanction the refund claims, by allowing the exporters to file periodically (for each quarter) and with close monitoring at the highest level in the CBEC s field formations - The second notification dated 07.07.20209 further facilitated by specifically including a number of taxable services for which refund claims can be submitted by exporters and the time period for filing such refund claims was made for longer period of one year from the date of export of the relevant export of goods. It is also found that service provided by a commission agent located outside India and engaged under a contract or agreement or any other document by the exporter in India, to act on behalf of the exporter, to cause sale of goods exported by him is covered under the taxable category of sub-clause (zzb) of Section 65(105) of the Finance Act, 1994 and it was provided as one of the eligible services on which refund is permitted in the aforesaid notifications. Since there was certain doubts raised about the applicability of the superseding notification to the past exports made during the application of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, are engaged in the export of- goods. They had been filing refund claims periodically in respect of- input service of Banking/Courier/TTA Commission and Commission- - paid to the Foreign Agent under Business Auxiliary Service (BAS) - which are used in export of goods for the respective period, by- claiming refund under Notification No.41/2007-S.T. dated 06.10.2007,- as amended. In respect of such refund claims filed for the period April,- 2008 to December, 2008 in six claims on different dates, the refund- claim filed on 31.03.2009 relating to the period October, 2008 to- December, 2008, was rejected by the original authority vide Order-in-- Original No. RK/R-61/2010 dated 25.03.2010. Further, in respect of- refund claim filed on 31.03.2010 for an amount of Rs.17,17,480/-, in- respect of refund of Service Tax paid in respect of input service- Commission paid to the Foreign Agent which are used in export of- goods during 01.04.2009 to 06.07.2009, was partly allowed to the- extent of Rs.91,275/- relating to the period 01.07.2009 to 06.07.2009- and the refund claimed for rest of the amount of Rs.16,26,205/-- relating to the period 01.04.2009 to 30.06.2009 was rejected by- original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion agent who provides- services exclusively related to export of goods, therefore even by- stretch of imagination it cannot be said that overseas commission- agent s service is used for the purpose other than for export. The- Appellants also submitted details in Annexure C to this appeal which- establish the nexus between the commission agent service and- export goods. As regard the rejection of refund claim of Rs.- 16,17,016/- on the ground of time bar I have observed that the- Appellants have admittedly filed the refund claim on 31/03/2010 i.e.,- after the issuance of Notification No. 17/2009-ST, therefore the- refund claim deemed to have been submitted under Notification No.- 17/2009-S.T. The Ld. Commissioner (appeals) gravely erred,- firstly mentioning that the application was filed before- 07/07/2009 which is factually incorrect and secondly when- refund claim was admittedly filed on 31/03/2010 , it was- wrong on the part of Commissioner to hold that the Appellants have- filed refund claim under the previous notification no.41/2007-ST and- for this reason benefit of public notice No.07/2010 dated 04/03/2010- was not extended to the Appellant. In view of my above- observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellaneous application preferred by the- appellants for rectification of mistake (RoM) No. 85075 of 2020, the- same was also dismissed on the ground that there is no mistake- apparent in the said order and the said application is devoid of merit- vide Miscellaneous Order No. M/85127/2020 dated 13.02.2020.- Against such order of the Tribunal, the appellants have preferred- Central Excise Appeal No.6 of 2021 before the Hon ble High Court of- Bombay, who in their judgement dated 22.06.2023 had restored the- appeal before CESTAT to its original number and directed to decide the- same on merits. On the basis of the same, and upon filing of a- miscellaneous application for restoration vide ROA application No.- 85504 of 2023, the Tribunal had taken note of the directions of the- Hon ble High Court of Bombay for fresh decision vide Miscellaneous- Order dated 18.01.2024 as follows:- 5. I find that the Hon ble High Court has already restored the- appeal before CESTAT to its original number and directed to decide- the same on merit. Therefore, the present application seeking- restoration of the appeal dismissed earlier, is infructuous;- accordingly, allowed to be withdrawn. In the result, the- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2009-TRU dtd- 01.01.2010 has clarified that though Notification No. 17/2009-S.T.,- dated 7-7-2009 simplifies the refund scheme, the nature of benefit- given to the exporters remains as it was under Notification No.- 41/2007-ST. Further, the new notification does not bar its- applicability to exports that have taken place prior to its issuance.- Therefore, the scheme prescribed under Notification No. 17/2007-S.T- would be applicable even for such exports subject to conditions that- (a) refund claim are filed within the stipulated period of one year,- and (b) no previous refund claim has already been filed under the- previous notification . In view of above, new notification No. 17/2009-ST dated- 07.07.2009 is applicable to the exports which had taken place prior- to its issuance, but the Refund claims are filed after 07.07.2009 and- that the refund claim shall be admissible only if the provisions and- conditions of the said notification no. 17/2009-ST are fulfilled.- Further the claimant vide their letter dated 07.12.2015, have stated- the refund is claimed only on the commission agent services- procured from foreign agents. 11.1 Further as regard, the claim of the claimant that No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are to be refunded or rebated/reimbursed. As a- number of input services are used in export of goods, the Government- had provided a mechanism for such refund/remission of service tax- involved in such exports. The instruction issued by the Ministry of- finance dated 17.04.2008 is extracted and reproduced below:- F. No. 341/15/2007-TRU Government of India Ministry of Finance Department of Revenue (Tax Research Unit) ***** RoomNo.146G, North Block, New Delhi, the 17th April, 2008. Subject: Refund of service tax paid on taxable services used by- exporters which are not input services but could be attributable to- export activities - Regarding. The Annual Supplement to the Foreign Trade Policy, 2004-09- announced on 19.4.2007 stated that service tax on services- rendered and utilised by exporters would be exempted/remitted and- the remission mechanism would be institutionalised after working out- the modalities. 2. Committee of Secretaries (COS) examined the matter and decided- that exemption from service tax could be notified and- reimbursement of service tax based on receipts may be allowed- provided linkage to export is established. 3. Accordingly, 16 taxable services have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the highest- level in the CBEC s field formations. In order to avoid frivolous- objections in sanction of such refund claim, such instructions have- gone to the extent of stating that 16 taxable services (which) have- been notified and the service tax paid on these taxable services, which- are attributable to exports even if they are not used as input services,- shall be refunded to exporters. Notification No.41/2007-S.T. dated- 06.10.2007 is one such notification extending the exemption to certain- specified services, which was superseded by Notification No.17/2009-- S.T. dated 07.07.2009 and further notification No.18/2009-S.T. dated- 07.07.2009 were also issued. The second notification dated- 07.07.20209 further facilitated by specifically including a number of- taxable services for which refund claims can be submitted by- exporters and the time period for filing such refund claims was made- for longer period of one year from the date of export of the relevant- export of goods. It is also found that service provided by a- commission agent located outside India and engaged under a contract- or agreement or any other document by the exporter in India, to act- on behalf of the expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporters through suitable public notice. 8.2 On careful perusal of the aforesaid instructions, it transpires that- the Government had provided the refund of service tax involved in- respect of exports, as a nature of benefit by simplifying the scheme- further in providing certain minimum conditions such as (i) filing of- refund claims within stipulated one year period, and (ii) that such- refund claim has not been filed earlier with the departmental- authorities. 8.3. From the findings of the authorities below for rejection of refund- claim as detailed in paragraph 5 above, it is seen that the refund claim- of the appellants was rejected on account of their claim not fulfilling- the conditions 2, 3 4 of Notification No.18/2009-S.T. dated- 07.07.2009 which relate to ceiling limit of refund, submission of half- yearly returns and is application in respect of export of canalized- items. In the present case, the facts on record show that the export- goods are nowhere claimed by Revenue to be canalized item; and that- the refund amount claimed was not questioned on the quantum of- ceiling. Further, as the refund claim relate to exports of the period- relating to April, 2009 to June, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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