CESTAT, NEW DELHI BENCH
Commissioner of Central Excise
FINAL ORDER NOS. 101-102 OF 2012-SM(BR)(PB)
APPEAL NOS. ST/1603-1604 OF 2011-SM (BR)
FEBRUARY 2, 2012
1. In this case, the appellant is a unit located in Noida Special Economic Zone. They had received services from persons located abroad and they had paid service tax as per the proviso of section 66A of Finance Act, 1994. They claimed refund of such service tax as per the proviso to Notification No. 9/2009-S.T., dated 3-3-2009. The claim was filed on 7-2-2011 and according to Revenue, there was a delay of 17 days in filing the refund claim. Clause (f) of the proviso to the said notification is as under :
“the claim for refund shall be filed, within six months or such extended period as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall permit, from the date of actual payment of service tax by such developer or unit to service provider.”
2. The Counsel for the appellants submits that the said proviso is not strictly applicable in this case because this was a case where the appellants had paid service tax and there was no case of payment of service tax to the service provider because such service provider was located abroad, and hence clause (f) is not strictly applicable. He also submits that the Deputy Commissioner has power to condone the delay as per the said clause of the proviso. Further he points out that this notification itself was superseded by another Notification No. 17/2011-S.T., dated 1-3-2011 and as per clause (e) of this notification, time-limit for filing of refund claim is one year from the date of payment of service tax by the persons availing service to the person providing the service. He points out that refunds in question were rejected by the adjudicating authority after the new notification had come into force. After the commencement of the notification, the adjudicating authority should have considered the new time-limit while rejecting the claim. Therefore, orders of the lower authorities are not maintainable.
3. The learned AR for revenue submits that clause (f) of Notification No. 9/09-S.T., dated 3-3-2009 is strictly not applicable in the situation at hand because there was no payment of service tax to the service provider in this case. According to him, the relevant date should have been counted either the date of payment of the value of service to the service provider or the date of payment of service tax by the appellant himself and the period if so counted, the refund claim was beyond time-limit. It is also his contention that the new time-limit will apply only for application filed after 1-3-2011 whereas this application was filed before that date.
4. Considered the arguments of both sides. I do not agree with the argument that the time-limit under Notification dated 1-3-2011 cannot be made applicable to the claims filed before that date and pending on that date. I also consider the fact that even under the earlier notification, the Deputy Commissioner had power to condone the delay. The delay involved was only 17 days and when a public authority is given any power, he is expected to exercise it unless there is a reason for not exercising such power. No reason has been recorded in the impugned order. In the facts and circumstances of the case, I consider that this a case where he should have considered the claim as per the proviso of Notification No. 17/2011-S.T, dated 1-3-2011 which was in force on the date when he issued the order. I hold that the claims are not time-barred and the matter is remanded to the adjudicating authority to decide the case afresh, on the merits of the claim.
5. The appeals are allowed by way of remand.
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