M/S.Kadambari Worldwide vs C.S.T.-Service Tax, Delhi

[Arising out of Order-in-Appeal No.197/ST/DLH/2012 dated 31.08.2012 passed by the Commissioner (Appeals), Central Excise, Delhi-I, New Delhi]

For approval and signature:

HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)

1. Whether Press reporters may be allowed to see the

order for publication as per Rule 27 of the CESTAT

(Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the

CESTAT (Procedure) Rules, 1982 for publication in

any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy

of the Order?

4. Whether Order is to be circulated to the Departmental

authorities?

__________________________________________________

M/s.Kadambari Worldwide Appellant

Vs.

C.S.T.-Service Tax, Delhi  Respondent

Present for the Appellant : Shri Jitendra Singh, Advocate

Present for the Respondent: Shri G.R. Singh, DR

Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)

Date of Hearing/Decision: 25.05.2015

FINAL ORDER NO. 53070/2015

PER: S.K. MOHANTY

This appeal is directed against the impugned order dated 31.08.2012 passed by the Commissioner (Appeals), Central Excise, Delhi-I, wherein refund claim filed by the appellant has been disallowed.

2 The brief facts of the case are that the appellant is an exporter of general merchandise like fabrics, readymade garments, artificial jewellery etc. and is registered under the service tax statute. The appellant has filed refund application on 10.12.2010 in respect of the service tax paid for the period of July 2008 to September, 2008. The said application was filed by the appellant in terms of Notification No.41/2007-ST dated 06.10.2007, which provides exemption by way of refund of service tax paid on specified taxable services, used in the exportation of goods. As per the requirement of the said notification, the refund claim has to be filed within 60 days from the end of the relevant quarter, within which the said goods have been exported. In the present case, since goods were exported during the period July to September, 2008 and the refund claim application was filed on 10.12.2010, which was not within the prescribed time limit as per the requirement of the said Notification, the authorities below have rejected the refund application. Hence, this appeal before the Tribunal.

3. The submissions of the learned Counsel for the appellant is that the condition itemised at clause (e) in paragraph 2 of the said Notification with regard to the time limit of sixty days for lodging the refund claim has no application to the facts of the present case. According to the ld. Counsel the provisions of section 11B of the Central Excise Act, 1944 shall apply mutatis mutandis for the refund claim filed under above referred notification. The Counsel further submits that since duty attributable to the exportation of goods was paid by the appellant on 25.02.2010 and the refund claim was filed on 10.12.2010, which is within one year from the relevant date, the refund benefit can not be denied in terms of section 11B of the Act. The ld. Counsel relies on the decisions in the following cases to satisfy his stand:-

1) K.K.S.K. Leather Processors Pvt. Ltd. vs. CCE, Salem reported in 2011 (24) STR 89 (Tri. Chennai)

2) Pioneer India Electronics (P) Ltd. vs. Union of India reported in 2014 (301) ELT 59 (Delhi)

4. On the other hand, the ld. DR appearing for the respondent while reiterating the findings recorded in the impugned order further relies on the decision of the Tribunal in the case of Spark Engineering Pvt. Ltd. Vs. CCE Ghaziabad reported in 2013 TIOL 631 CESTAT-Delhi and Sakey Overseas vs. CCE, Ludhiana reported in 2013 TIOL 1022 - CESTAT-Del. to support his stand that since the time limit for filing refund application has been specifically provided in the Notification, the same has to be strictly adhere to for the purpose of sanctioning the refund and the time limit prescribed in section 11B of the Act will have no application.

5. Heard the ld. Counsel for both sides and perused the records.

6. Service tax paid on specified taxable services used for the services exported to outside countries are exempt from payment of service tax. The exemption is administered by way of refund i.e. the service provider at the first stage has to pay the service tax attributable to the taxable services and thereafter has to file the refund application. In this context para 2 (e) of the said Notification is relevant, which provides that the claim for refund shall be filed on a quarterly basis, within 60 days from the end of the relevant quarter during which the said goods have been exported. In the present case, it is admitted fact on record that the export took place during the period July to September, 2008 and the refund application was filed by the appellant on 10.12.2010. As per the requirement of he said Notification, since the refund application has not been filed within the specified time limit prescribed therein, the same, in my opinion, is barred by limitation of time. The submissions of the appellant that service tax attributable to the period was only paid on 15.02.2010 and the refund application having been filed on 10.12.2010, the same is within the prescribed time limit as per the mandate of section 11B, I am of the considered view that section 11B of the Central Excise Act will have no application to the refund benefit claimed under Notification dated 06.10.2007, since there is no specific mention therein that the time limit of one year prescribed in Section 11B will be applicable.

In other words, since the time limit has been prescribed in the said Notification for filing the refund claim, the tax payer has to strictly comply with the conditions mentioned therein. In this context, I find this Tribunal in the case of Sakey Overseas and Spark Engineering Pvt. Ltd. (supra), under an identical set of fact has disallowed the benefit of refund to the assessee on the ground that the refund has been filed beyond the period prescribed under the said Notification. I further find that the decision of the Tribunal in the case of K.K.S.K. Leather Processors Pvt. Ltd. (supra) cited by the ld. Advocate will not have any application, since the said Notification does not deal with the provisions of section 11B of the Act, regarding claim/sanction of refund amount. Further judgment of Honble Delhi High Court in the case Pioneer India Electronics (P) Ltd. (supra) is distinguishable from the facts of the present case, inasmuch as, Notification No.41/07 was not the subject matter of dispute before the Honble Court. Further the issue decided therein is a case covered under the Customs Act, 1962. Since the issue of refund claim arsing out of the Notification No.41/07 has not been discussed in the said cited judgments, the principles decided therein have no application to the facts of the present case.

7. In view of above, I do not find any infirmity in the impugned order passed by the Jurisdictional Central Excise Commissioner and, accordingly, I dismiss the appeal filed by the appellant.

(Dictated and pronounced in the open Court)

(S.K. MOHANTY)

MEMBER (JUDICIAL)

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