By Puloma Dalal, Jayesh Gogri, Mandar Telang Chartered Accountants
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In case of amendment in refund notification, whether provisions existing on the date of export of goods should be considered or provisions existing on the date of filing refund claim should be considered?Held provisions on date of claim should be considered.
Facts:
The Appellants exported goods and claimed refund of service tax paid vide Notification No. 41/2007-ST dated 06-10-2007. The department rejected refund claim on the ground that the exporter did not satisfy the following conditions of the said Notification, existing at the time of export which were modified at the time of filing refund claim:
• The exporter should not have availed drawback of service tax
• The refund claim should have been filed within 6 months and
Further, the amount of commission should have been declared on shipping bill.
The Appellants relied on the decision of Mumbai Tribunal in case of WNS Global Service Pvt. Ltd. vs. CCE, Mumbai 2008 (10) STR 273 (Tri.-Mum.) and contested that in case the refund claim is filed post the amendments of the notification and if the amended requirements are satisfied, refund claim cannot be rejected. Since the conditions were modified and there was no condition for non-availment of drawback and time limit was extended to 1 year at the time of filing refund claim, the Appellants were required to fulfil the amended conditions. Further, since SCN was silent with respect to non-declaration of commission amount on shipping bill, the order travelled beyond SCN and in any case, the same was a procedural lapse.
The revenue relied on the decision of Chennai Tribunal in case of CCE, Madurai vs. Shiva Tex Yarn & Others 2012 (25) STR 56 (Tri.-Chennai) wherein it was held that the amendments to notification has prospective effect only.
Held:
Decision cited by revenue is a Single Member Bench decision whereas decision cited by the Appellants is a Division Bench decision including the Single Member who had rendered the decision. Having regard to the objective of duty and tax free exports and Circular dated 12-03- 2009 clarifying that pending claims to be dealt with by applying amended provisions, it was held that the provisions as applicable on the date of filing refund claim needs to be followed. Non-mention of commission amount in shipping bill was a mere procedural lapse. Accordingly, if documentary evidence is available with respect to payment of service tax on commission, refund claim is to be granted.
