9911796707
TMI Blog2024 (10) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... mption is granted to an eligible exporter who fulfills its conditions and the facility is not abused. Hence these procedural violations would cause serious prejudice to revenue if refund is to be granted. While it is true that Government does not seek to burden the exporter with taxes, those who want to get the benefit of a notification benefit extended to them shall have to satisfy the provisions of the notification, so that no misuse of the same is made. The issue stated in the impugned order for rejection of the claim are not flimsy or mere technicalities. The Hon ble Supreme Court in Commissioner of Central Excise, Chandigarh I Vs Mahaan Dairies [ 2004 (2) TMI 73 - SUPREME COURT] , stated that, It is settled law that in order to claim benefit of a Notification a party must strictly comply with the terms of the Notification. If on wordings of the Notification the benefit is not available then by stretching the words of the Notification or by adding words to the Notification benefit cannot be conferred. The he lower authority has taken a view which is reasonable, legal and proper - appeal dismissed. - Hon ble Shri M. Ajit Kumar, Member ( Technical ) None for the Appellant Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hence they were not in a position to assess the quantum or value of services and hence, they were claiming refund of service tax based on actual and upon production of connected documents as per paragraph 3 of Notification 41/2012 dated 29.06.12 by filing the refund application their range/division Excise Officials. They submit that since they have made clear the full background of their refund application, any omission or absence of compliance that may still be noticed in their refund application is purely unintended and may be considered only as a technical lapse. The adjudicating authority should have examined the issue from the angle that is more advantageous to the appellant, which he did not do and has rejected the appeal. Further, the appellant has stated that the omission pointed out is already available with the customs / excise / DGFT data bank. The rejection of refund claims preferred by the appellant on flimsy grounds standing on technicalities is most unfortunate and the appellant wishes to state the following case laws support of their above claim. Indian Oil Corporation v. Union of India, 2010 (262) ELT 94 Guj, IDL Industries Ltd v. Commissioner of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Commissioner (Appeals) in the case of a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India, also does not lie before the Tribunal. A rebate of duty of excise on excisable goods is filed as per a notification issued under rule 18 of the Central Excise Rules. I find that the refund of tax paid on services, in this case does not emanate from either of these situations but from a notification issued as per the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994. There is no specific exclusion of any category of cases under the Finance Act, 1994, from being appealed before the CESTAT, as has been done in the case of the Central Excise Act and the Customs Act, hence the appeal against the Commissioner (Appeals) order in this case shall lie to CESTAT and not to the JS (RA). 9. However, besides the legal position it is essential to examine whether at all Notification No. 52/2011-Service Tax, dated 30/12/2011, involves a case of rebate or draw back. The entire notification does not use the term rebate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export of the said goods has been taken under the CENVAT Credit Rules, 2004; (d) the exemption shall not be claimed by a Unit or Developer of a Special Economic Zone; *****. *****. ***** (3) the exemption shall be given effect to in the following manner, namely:- (a) the exporter claiming the exemption has actually paid the service tax on the specified service used for export of the said goods; (b) the person liable to pay service tax under section 68 of the said Act on the specified service provided to the exporter and used for export of the said goods shall not be eligible to claim exemption for the specified service; (c) exemption by way of refund claimed by following the procedure specified in this paragraph shall be subject to the conditions specified against the specified service in column (4) of the said Table; (d) the manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, shall file a claim for refund of service tax paid on the specified service to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the claim shall be certified by the person authorised by the Board of Directors; (B) the documents enclosed with the claim shall also contain a certificate from the exporter or the person authorised by the Board of Directors, to the effect that specified service to which the document pertains has been received, the service tax payable thereon has been paid and the specified service has been used for export of the said goods under the shipping bill number; (k) where the total amount of refund sought under a claim is more than 0.25% of the total FOB value of export goods, the procedure specified in clause (j) above shall stand modified to the extent that the certification prescribed thereon, in sub-clauses (A) and (B) shall be made by the Chartered Accountant who audits the annual accounts of the exporter for the purposes of the Companies Act, 1956 (1 of 1956) or the Income Tax Act, 1961(43 of 1961), as the case may be; (l) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after satisfying himself,- (i) that the service tax refund claim filed in Form A-1 is complete in every respect; (ii) that the specified docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be, having jurisdiction over the registered office or the head office, as the case may be, of such exporter. 16. It is seen that the appellant is neither registered with the Central Excise Department nor has he registered his service tax code number and bank account number with the customs. He has also not made a declaration in the Shipping Bill while presenting the same to the proper officer of customs. Hence no verification could possibly have been done by the department. The said conditions are the essence or substance of the notification granting exemption. It helps the department in ensuring that the exemption is granted to an eligible exporter who fulfills its conditions and the facility is not abused. Hence these procedural violations would cause serious prejudice to revenue if refund is to be granted. 17. Exemptions are an exception to the general rule, hence if a notification requires a thing to be done in a particular manner, it should be done in that manner or not all. A Constitution Bench of 5 Judges of the Hon ble Supreme Court in the case of Commissioner v. Hari Chand Shri Gopal [2010 (260) E.L.T. 3 (S.C.)], while examining held; 22. The law is well settled ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
