- (1.) This appeal by the assessee under Section 35G of the Central Excise Act, 1944 arises from a judgment of the Customs Excise & Service Tax Appellate Tribunal dated 7 October 2013. Though several questions of law have been framed, the controversy would be sufficiently governed by the following question: (i) Whether the Tribunal was justified in not granting refund of the amount which according to the department was claimed after one year, though the entire refund claim was within time and was not hit by limitation in terms of Section 11B of the Central Excise Act, 1944 under which the refund application was filed. The assessee filed a refund claim in the amount of Rs. 6,33,923/- on 10 December 2009 under Section 83 of the Finance Act, 1994 (read with Section 11B of the Central Excise Act, 1944). The assessee claimed that it had paid service tax by mistake during the period from April 2008 to June 2009 in respect of the services of commission agents located abroad who had been engaged for procuring orders for export, A notice to show-cause was issued to the assessee by the Assistant Commissioner, Customs, Central Excise & Service Tax, Division-I, Noida on 8 January 2010 to show-cause as to why the refund should not be disallowed. The Assistant Commissioner rejected the refund claim by an order dated 7 March 2011. In appeal, the Commissioner (Appeals) held that the claim for refund filed within a period of one year from the date of export was not barred by limitation and the assessee would be entitled to a refund for that period, if otherwise admissible on merits. The appeal filed by the assessee has been dismissed by the Tribunal by its impugned order dated 23 September 2013.
(2.) In order to appreciate the controversy, brief reference to the relevant notifications would be necessary: (i) On 6 October 2007 notification 41/2007 was issued under Section 93(1) of the Finance Act, 1994 by which an exemption was granted in respect of certain taxable services from the whole of the service tax leviable thereon subject to conditions. Clause 2(b) of the circular contemplates that exporters shall claim the exemption by filing a claim for refund of service tax paid on specified services. Clause 2(e) of the circular provides that the claim for refund shall be filed on a quarterly basis, within sixty days from the end of the relevant quarter during which the said goods have been exported. (ii) On 1 April 2008 notification 17/2008 was issued by the Union Ministry of Finance to amend the earlier notification dated 6 October 2007. By the amendment, taxable services under Section 65(105)(zzb) comprising of services provided by a commission agent located outside India, and engaged under a contract or agreement or any other document by the exporter in India, to act on behalf of the exporter for the sale of goods exported by him were specified. Consequently, the exemption in respect of services availed of by an exporter of a commission agent located abroad for acting on behalf of exporter for the sale of goods was brought into effect. (iii) On 7 July 2009, by notification No. 17/2009, the earlier notification (Notification 41/2007) was superseded. An exemption was provided by way of refund of service tax paid on specified services used for the export of goods. Clause 2(f) of the notification provided that the claim for refund shall be filed within one year from the date of export of the goods. The explanation stipulated that the date of export shall be the date on which the proper officer of Customs makes an order permitting clearance and loading of the goods for exportation. Admittedly, the services of a commission agent, governed by Section 65(105)(zzb) would not fall within the purview of notification 17/2009. (iv) By notification 18/2009, which was also issued on 7 July 2009, various taxable services including those governed by Section 65(105)(zzb) came to be exempted subject inter alia to the condition that the exporter availing of the exemption shall file a return every six months in a financial year within fifteen days of the completion of the six months. Hence, by notification 18/2009 the requirement of paying the service tax and thereafter applying for a refund was deleted in respect of the taxable services governed by that circular.
(3.) In the present case, the period during which the goods were exported by the assessee was April 2008 to June 2009. At the relevant time the notification which held the field was notification 41/2007 as amended by notification 17/2008. Accordingly, the assessee was required to pay service tax and thereafter apply for refund within a period of sixty days from the end of the relevant quarter during which the goods had been exported. Admittedly, the assessee did not do so.;