RAYMOND WOOLEN OUTERWEAR LTD. Vs. COMMR. OF C. EX. & CUS.
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
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M.V. Ravindran, Member (J) -
(1.)THIS appeal is directed against Order -in -Appeal No. AKP/42/NSK/2010, dated 2 -2 -2010 passed by the Commissioner of Central Excise & Customs (Appeals), Nasik. The relevant facts that arise for consideration are that the appellant have filed refund claims of the Service Tax paid by them on the export of goods under Notification No. , dated 6 -10 -2007 as amended by Notification No. , dated 7 -12 -2008. The refund claims were rejected by the lower authorities on the ground that the appellant had claimed excess refund of the Service Tax paid by commission agent.
(2.)THE learned Counsel appearing on behalf of the appellant submits that the refund claim is for the period October, 2008 to December, 2008 on the Service Tax paid on the commission paid to the commission agents. It is his submission that for the period October, 2008 and November 2008 as per Notification No. the refund that can be claimed is of 2% of the FOB value or the actual Service Tax paid whichever is less. It is his submission that by Notification No. , dated 7 -12 -2008 the said 'two per cent.' was substituted by 'ten per cent'. He would draw our attention to the said Notification. He would submit that they have filed refund claims on 27 -6 -2009 on which date Notification No. was in force and they have correctly claimed refund of 10% of the FOB value or the actual Service Tax paid whichever is less. He would draw our attention to the said Notification No. and submits that the amounts which have been paid as refund are actually exemption. He would also submit that the words used in Notification No. stipulates that the percentage of FOB to be claimed as refund was substituted which would mean that 10% would be applicable from the date of Notification 41/2008 -S.T. He would also rely upon the decision of the Apex Court in the case of Government of India v. Indian Tobacco Association, : 2005 (187) E.L.T. 162 (S.C.). He also relies on the Circular No. 112/6/2009 -S.T., dated 12 -3 -2009 to bring to our notice that Board itself has clarified that the period has been extended for filing the refund claim as per Notification No. which would mean that the said notification would be applicable for other purposes also.
The learned Departmental Representative reiterates the findings of the lower authorities.
(3.)ON perusal of the records and on consideration of the submissions made by both the sides, we find that the issue that falls for our consideration is whether the appellant herein is eligible for claiming refund of the Service Tax paid on the commission paid to the commission agents @ 10% of the FOB value for the entire period i.e. October to December, 2008 or whether the Revenue is correct in granting refund to the appellant @ 2% of the FOB value for the period October, 2008 to 6 -12 -2008 and subsequently 10% of the FOB value as provided in Notification No. In our considered view, the submissions made by the learned Counsel are not in consonance with the law for more than one reason, i.e., On a perusal of Notification No. we find that the said notification does not indicate that the words 'ten per cent.' shall be effective in the Notification 41/2007 from the date when it was issued. Secondly, we find that the benefit which has been sought to be given to the appellant is in respect of the exports which were made prior to the Notification came into existence, which in the case in hand, were eligible as per Notification No. . In our considered view, the benefit of Notification No. can be claimed by the appellant from 7 -12 -2008 which is not in dispute as the Revenue has granted the said benefit to the appellant.
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