Case Law Details

Case Name : Ultratech Cement Ltd. Vs Commissioner of Central Excise, Bangalore (CESTAT Ahmedabad)
Appeal Number : Order No. A/312/WZB/AHD OF 2012
Date of Judgement/Order : 02/03/2012
Related Assessment Year :
Courts : All CESTAT (1011) CESTAT Ahmedabad (138)

CESTAT, AHMEDABAD BENCH

Ultratech Cement Ltd.

V/s.

Commissioner of Central Excise, Bangalore

ORDER NO. A/312/WZB/AHD OF 2012

APPEAL NO. ST/301 OF 2010

Date of Pronouncement -02.03.2012

ORDER

1. The facts of the case, in brief, are that the appellants filed a claim of refund of Service Tax under Notification No.l7/2009-ST, dt.7.7.09 on 19.08.09. A part of the claim of Rs.1,74,761/- pertains to ‘Charter hiring charges’, falling under sub-clause (zzzzj) of Clause (105) of Section 65 of Finance Act, 1994, was rejected as time barred on the ground that the said services were pertaining to the goods exported beyond the period of 1 year from the date of filing of refund claim.

2. Heard both sides.

3. We find that the claim has been rejected on the ground that according to the Clause 2(f) of Notification No.17/2009-ST, dt.7.7.2009. the claim of refund has to be filed within 1 year from the date of export of the goods. In this case, the goods in respect of which the services had been utilized were exported more than 1 year prior the date of filing of refund claim under Notification No.17/2009-ST. The appellants have submitted that in this case, there was a delay in filing refund claim because of the payment of Service Tax was made on 29.06.2009 only. The refund claim was submitted on 19.08.2009. It was submitted that in the case of Service Tax, the refund claim cannot be filed without paying the Service Tax and therefore, 1 year period is required to be counted from the date of payment of Service Tax. It was also submitted that the reliance placed by the Commissioner on Para (iv) of Circular No.112/06/2009-ST, dt.12.3.2009 is also not correct since it can be applied only where the service was availed before export of the goods and in case of where the service receiver is liable to _pay Service-Tax. He also relied upon the several decisions.

4. I have considered the submissions made by both the sides. It is settled law that the notifications issued by Government have to be considered as a part of statute. Further, the Notification No.17/2009-ST is a self-contained notification which is basically an exemption notification and provides that the exemption is provided by way of refund of Service Tax paid in respect of export.

5. As observed by the lower authorities, according to Clause 2(f), the claim has to be filed within 1 year from the date of export of goods. As already observed, this becomes a statutory requirement and a substantive requirement and therefore, the Tribunal, being a creature  of law, cannot go beyond the provisions of law and statutes and give relief.

6. Therefore on this ground alone, I find that no relief can be given to the appellant

7. I also find that the reliance placed by ld. A.R. on the decision in the case of LGW Ltd v. CST [2011] 31 STT 57 (Kol-Cestat) where a stand taken by the Department to reject the refund was upheld, is relevant.

8. In view of the above, the appeal is rejected.

NF

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