CESTAT, NEW DELHI BENCH
Spark Engg. (P.) Ltd.
Commissioner of Central Excise, Ghaziabad
FINAL ORDER NOS. 55172-55174 OF 2013 SM(BR)
APPEAL NOS. ST/1270-1272 OF 2011
JANUARY 10, 2013
Ms. Archana Wadhwa, Judicial Member
All the three appeals are being disposed of by a common order as the issue involved is identical. For better appreciation of facts reference is being made to Appeal No. 1270/2011-SM.
2. After hearing both the sides, I find that the appellant is engaged in the manufacture of bicycle parts which they were clearing for the domestic markets as also were being exported. As per the service tax provisions, the appellant was required to pay service tax in respect of GTA services received by them and the export commission services on reverse charge basis. The appellant did not deposit the said service tax on the belief that where the services stands utilised for export, no deposits were required to be made. However, subsequently the Revenue made out a demand against them and accordingly appellant deposited the service tax in respect of export commission and GTA services. Inasmuch as the said services were used by them for export of their final product, they were entitled to refund of the same under Notification No.41/2007-ST, dated 6-10-2007. The refund claim filed by the appellant stands rejected by the authorities below on the ground that the same stands filed after a period of expiry of 60 days from the end of the relevant quarter and as such the conditions of Notification No.41/2007, dtd. 6-10-2007 do not stands satisfied by them. Accordingly, the refund claims were rejected as barred by limitation.
3. Ld. advocate appearing for the applicants does not dispute that in terms of said Notification, the refund claims are required to be filed on quarterly basis within 60 days from the end of the relevant quarter during which the said goods have been exported. Admittedly, the goods were exported prior to the deposit of the service tax and as such the appellant was unable to claim refund of the same. He fairly agrees that the refund claims stands filed after a period of 60 days from the end of the relevant quarter during which the goods were exported. However, he submits that the refunds are within a period of limitation as provided under section 11B from the date of deposits of the duties. Arguing further, he submits that the service tax was not deposited by the appellant, the question of claiming the refund of the same within a period of limitation provided under Notification No.41/2007 does not arise. Accordingly, he prays for adopting the limitation as provided under section 11B inasmuch as the said section stands made applicable to the service tax matters in view of the section 83 of the Finance Act, 1994.
4. Ld. DR appearing for the Revenue prays for rejection of the appeals on the ground that when the Notification in question lays down the limitation period, the refund application should have been filed within the period and such period cannot be further extended.
5. After considering the submissions made by both the sides, I find that in terms of Notification No.41/2007, the refund of service tax used in export of the final product is required to be made by an assessee on quarterly basis within 60 days from the end of the relevant quarter during which the said goods have been exported. The goods in appeal No.E/1271/2011-SM stands exported during the period 18-4-2006 to 31-3-2009. However, as the appellant had not paid the service tax in respect of GTA services and overseas commission service received by them, the question of refund claim within a period of 60 days from the export period, does not arise. The said deposits were made by the appellant subsequently on 1-12-2009 and the refund applications were filed on 11-3-2010.
Same is the situation in other two appeals inasmuch as the refund stands filed after the expiry of limitation period provided in terms of Notification but within a period of one year from the date of deposits of tax.
6. The Notification in question clearly requires an assessee to file refund claim on quarterly basis within a period of 60 days from the end of relevant quarter during which the goods stands exported. Such period prescribed by the notification cannot be extended by courts working within the parameters of the excise laws. Though I find that refund claims could not be filed within the said period as no duty deposits were made by the appellant but as held by various courts, the Tribunal acting within the framework of the Act/rules/notifications cannot introduce any provision of the same. As such the period prescribed in the Notification cannot be extended on the ground of the impossibilities of adherence to the same. The appellant could have deposited the said service tax well within time and could have filed refund claim of the same within the period prescribed under Notification. Having not done so, I find no merits in the appellant’s claim to extend the limitation period by artificially considering the date of deposits as the relevant date.
7. The appellant have also taken an alternative plea that u/s 83 of the Finance Act, 1994, provisions of section 11B of Central Excise Act have been made applicable to service tax provisions. As per the definition of relevant date appearing in section 11B, the same is to be considered as the date of payment of duty. Inasmuch as the refunds were filed within the limitation period prescribed under section 11B, by treating the date of payment of duty as relevant date, the same is not barred by limitation.
8. I have gone through the provisions of section 11B. Relevant date in case of goods exported out of India where refund of excise duty paid is available in respect of goods exported or in respect of materials used in the manufacture of such goods is the date on which the ship or aircraft in which the such goods are loaded leaves India. Admittedly the present case relates to refund of duty paid on the excisable materials used in the manufacture of goods ultimately exported, the date on which the ship or aircraft has left India is the relevant date. In terms of sub-section B(a)(i) of section 11B the appellant’s contention that in terms of sub-section (f), the date of payment of duty would be relevant, cannot be accepted inasmuch as the said sub-section is residuary provision as is clear from the use of expression “in any other case”. As the specific date stands provided in respect of goods exported, the same has to be adopted for the purpose of limitation. It is not the appellant’s plea that the goods were exported on a later date and the refund claims were filed within the period of 60 days from the quarter during which the said exports were made, I find no infirmity in the views adopted by the authorities below. Accordingly, the impugned orders are upheld and all the appeals are rejected.