M/S. Mehta Stone Export House vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 240(DKV)CE/JPR-I/2011 dated 8/09/2011 passed by Commissioner of Central Excise (Appeals), Jaipur]

For approval and signature:

Honble Mr Ashok Jindal, 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. Mehta Stone Export House. Appellants

Vs.

Commissioner of Central Excise Respondent

Jaipur I

Appearance:

Shri Mayank Garg, Advocate for the Appellants

Shri R K Mishra, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 22.05.2015

ORDER NO. FO/ 51708/2015-Ex(SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order wherein the refund claim has been rejected by learned Commissioner (Appeals) as time barred.

2. The facts of the case are that the appellant is a manufacturer of excisable goods and 100% EOU. During the period, October, 2009 to 23.11.2009, the appellant availed certain services and paid Service Tax thereon which were lying unutilized in their Cenvat credit account. Therefore, for the period October, 2009 to December, 2009, they filed the refund claim on 23.11.2010 for refund of service tax paid lying unutilized in their cenvat credit account under Rule 5 of Cenvat Credit Rules, 2004. The adjudicating authority sanctioned refund claim but the said order was challenged by the Revenue before learned Commissioner (Appeals) who held that as shipment took place on 23.11.09, therefore claim of refund has to be filed within the prescribed time limit of one year as provided in para B of explanation to the section 11B of the Central Excise Act, 1944, relying on the decision of CCE Coimbatore vs. GTN Engineering (I) Ltd. [2012 (281) ELT 185 (Mad)]. Aggrieved from the said order, appellant is before me.

3. Learned Counsel for the appellant submits that fact of payment of service tax by the appellant is not in dispute and period of dispute is October, 2009 to 23.11.2009 and refund claim of service tax is filed by the appellant in 2010 therefore, refund claim is within one year as per section 11B of the Act. The issue came up before Tribunal in the case of K K S K Leather Processors (P) Ltd. vs. CCE, Salem, wherein this Tribunal considered the decision of GTN Engineering (I) Ltd. (supra) and allowed the refund claim, therefore refund claim is to be allowed.

4. I find learned AR strongly relied upon the decision of GTN Engineering (I) Ltd. (supra) and supported the impugned order.

5. Heard the parties. Considered the submissions.

6. In this case the facts are not in dispute that the appellant has paid the service tax in January, 2010 and filed refund claim on 23.11.2010. The reason for denial of refund to the appellant is that as the export took place on 23.11.09 and refund claim was filed beyond one year time period under section 11 B of the Central Excise Act, 1944. The said issue has come up before this Tribunal in the case of K K S K Leather Processors (P) Ltd. (supra) wherein this Tribunal has considered the decision of GTN Engineering (I) Ltd. (supra) which was rightly relied upon by learned AR and this Tribunal has come to a conclusion as under:

14.?I have considered submissions on both sides. I find that the decision of the Madras High Court in the case of GTN Engineering (I) Ltd. (supra) was with reference to Cenvat credit of duty paid on inputs and capital goods as is seen in Para 4 of the said judgment. In the case of inputs and capital goods, there is no difficulty in applying clause (a) to Explanation B of Section 11B because it specifically provide for inputs and capital goods used in the manufacture of excisable goods. We are dealing with a situation, where input services used for marketing of finished goods exported is considered and Service Tax is paid on reverse charge mechanism. The Service Tax law requires payment of tax only on payment of consideration to the agent abroad from whom service is received. That being the case, the facts of this case cannot be equated with that in the case of GTN Engineering (I) Ltd. (supra) and the legal principle of implying necessary changes into a section of one Act made applicable for purposes of another Act cannot go to such extent to defeat the very objective of a beneficial scheme like grant of refund due on exports. After coming to the conclusion that clause (a) to Explanation B will not apply, I have sequentially gone through the other clauses and I find that the most appropriate clause that will apply in this particular case, is clause (f), that is date of payment of Service Tax. In this case the applicant filed his claim within one year from the date of payment of Service Tax and, therefore, I am of the view that the claim is filed within the time-limit and the appellant is eligible for refund. Therefore, the appeal is allowed with consequential relief.

7. In this case facts are similar to the facts of K K S K Leather Processors (P) Ltd.(supra). Therefore, relying on the said decision and facts are not in dispute, therefore I hold that appellant has filed refund claim within period therefore, they are entitled for said claim. As a result, the impugned order is set aside. Appeal is allowed with consequential relief.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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