Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Law/2013-14/2328

Provisions prevalent at the date of filing refund claim to be applied.

Case:- FAIZAN SHOES PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI
 
Citation:-2014 (34) S.T.R. 205 (Tri. - Chennai)

Brief facts:- The four Misc applications filed by the appellants are for incorporation of additional grounds. The same are allowed in the absence of any opposition from the department’s side.
The appellants are exporters who have claimed refund of service tax amounts paid on services in relation to the exports under Notification No. 41/2007-S.T., dated 6-10-2007. These have been rejected by the authorities below on one or the other grounds mentioned below:-
1.     At the time of export, proviso (e) to para-1 of the said notification required that the exporter should not have availed drawback of service tax. This condition is not satisfied by the appellants on the date of export even though the condition itself was omitted w.e.f. 7-12-2008 prior to filing of the refund claims.
2.     At the time of export, the said notification provided a time-limit of 6 months for filing of the refund claim even though, by the time the claims were filed, the time-limit was extended to one year w.e.f. 7-7-2009.
3.     The said notification provided a condition that the exporters shall declare the amount of commission in the shipping bill.
 
Appellant’s contentions:-Shri N. Viswanathan, ld. advocate appearing for the appellants, states that in the case of WNS Global Services (P) Ltd. v. CCE, Mumbai - 2008 (10)S.T.R.273 (Tri.-Mumbai)the Tribunal has held in paragraph 10 thereof that where the refund claims are filed after an amendment and the requirements are satisfied, the refund claims cannot be rejected. He states that on the date of refund application, there was no requirement that drawback should not have been taken and also the time-limit was also extended to one year. Hence, all the refund claims are admissible. As regards the omission of the commission amount in the impugned shipping bills in few cases, he states that the SCNs were silent on this ground and hence impugned orders are beyond the grounds taken in the SCN and further that this was only a procedural condition.
 
Respondent’s contentions:- Ld. JCDR appearing for the department opposes the contentions made on behalf of the appellants and cites the decision of the Tribunal dated 18-8-2011 in the case of CCE, Madurai v. Shiva Tex Yarn & Others in Appeal Nos. ST/432, 433/2011 [2012(25)S.T.R.56(Tri.-Chennai)]to the effect that the amendments to a notification are only of prospective effect.
 
Reasoning of judgment:- The Hon’ble Tribunal find that the decision cited by the ld. JCDR is rendered by a Single Member Bench whereas the decision cited by the ld. advocate is that of a Division Bench including the Single Member who has rendered the decision dated 18-8-2011. As such, the Division Bench decision is required to be followed in preference to the Single Member Bench decision. Secondly, the provisions contained in the cited notification have been extended to free the Indian exports from domestic taxes by refunding the service tax so that the domestic taxes are not exported along with the goods and the Indian goods become competitive in the international market. This objective would also be served by following the decision of the DB. Further, they find that when the time-limit was extended from 60 days to 6 months, the Board itself by Circular dated 12-3-2009 clarified that pending claims should be dealt with applying the amended provision as also noted by another Bench of the Tribunal in the case of CCE, Surat v. Essar Steel Ltd. - 2010 (20)S.T.R.769 (Tri.-Ahmd.). Accordingly, following the cited decision of the Tribunal in the case of WNS Global(supra) and the Board’s Circular dated 12-3-2009, they are of the view that in regard to both the objections raised i.e. clause relating to non-availability of drawback as well as for the time-limit, the amended provisions as applicable on the date of filing of refund claims require to be applied.
As regards the non-mention of the commission amounts in the shipping bill, this is a mere procedural condition and the refund claims can be considered if there is documentary evidence regarding the amount of service tax paid on the actual amounts of commissions disbursed.
In view of their findings as above, the impugned orders are set aside and all the five appeals are allowed with the direction that the refund amounts be allowed to the appellants, if otherwise due.
 
Decision:-  Appeals allowed.
 
Comment:-The crux of the case is that the amended provisions as applicable on date of filing the refund claims are to be applied. Also, non-mention of commission amounts in shipping bill is procedural lapse and the refund is to be granted if payment of service tax and use of service in the exported goods is not disputed.

Prepared by:- Monika Tak

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com