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Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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PJ/Case Laws/2011-12/1147

Refund of Service Tax under Notification No. 41/2007-ST

Case: Amity Thermosets Pvt Ltd v/s Commissioner of C. Ex., Vapi
 
Citation: 2011 (22) STR 157 (Tri-Ahmd)
 
Issue:- Refund of Service Tax under Notification No. 41/2007-ST – application for refund filed under wrong form – substantive right cannot be denied on the ground that covering letter of refund claim is wrong.
 
Brief Facts:- Appellants filed 3 rebate claims in Form ASTR-2 under Rule 5 of Export of Service Rules, 2005 claiming rebate of service tax and cess paid on input service used for export of taxable service viz. Goods Transport Service on 09.05.2008.
 
Show cause notice was issued proposing to reject the said rebate claims on 12.01.2009. Before the Adjudicating Authority appellant-assessee submitted that they had due to ignorance filed their claim under wrong from. They intended to seek the rebate claim under Notification No. 41/2007-ST dated 06.10.2007 under which refund of service tax paid on certain specified services used in relation to export goods is admissible.
 
The Adjudicating Authority rejected the rebate claims on the ground that there was no export of service involved as the service tax paid in respect of GTA services availed by them was an ‘input services’.
 
Against this order, the appeal was filed to the Commissioner (Appeal) which was rejected. Hence, appellant is before the Tribunal.
 
Appellant’s Contention:- Appellant contended that refund claim was filed in a wrong form. Reliance was placed on the judgment in CCE v/s Nisha Chemicals [1986 (26) ELT 809 (Tri)] and it was submitted that the forms are meant to facilitate and not to act as hindrance. Reliance was also placed on decision in M/s National Iron Steel Co. Ltd [2003 (162) ELT 3 (SC)] wherein a view was taken that the refund claim has to be allowed from the date of filing appeal and not from the date on which a proper application was made.
 
Reasoning of Judgment:- The Tribunal noted that not only the wrong form was submitted but even the ground on which the refund claim is made was also wrong. It was noted that appellant had submitted in the application that they had exported Goods Transport Services and claimed refund, whereas in reality, they had exported excisable goods and they were claiming refund of service tax paid on GTA services. It was noted by the Tribunal that they had submitted the following details alongwith their application:
 
(i) Statement of Export, goods transport freight paid; (ii) Service Tax challan copy (Form GAR); (iii) Photocopy of Lorry Receipt (iv) Photocopy of Transporters Freight Bill; (v) Photocopy of ARE-1; (vi) Photocopy of Bill of Lading; (vii) Photocopy of Shipping Bill.
 
The Tribunal held that from the documents it is clear as to what was the refund being claimed for. It was noticed that during the time between filing of refund and of issuance of show cause notice, there was no proforma prescribed for filling of refund claim and therefore, what was required to be filed was only a letter with relevant details. The wrong statement appears to be clerical error.
 
The Tribunal agreed with the submissions of the appellant that substantive right cannot be denied on the ground that covering letter of the refund claim was wrong. This is rectifiable error. The judgments cited by the appellant were also held to be applicable.
 
Impugned order set aside. Matter remanded for hearing on merits of the case.
 
Decision:- Appeal allowed. 

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