Johnny and Service Tax Refund [Series-II] Part 5: Condition relating to Time Limit of One Year | 2008 Tax Refund Calculator

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Johnny and Service Tax Refund [Sequence- II]

Aspect five: “Problem relating to Time Limit of A single Year”

By: -

CA. Pradeep Jain

Mayank Palgauta

Visit us at: www.capradeepjain.com

In continuation of preceding content articles, structuring complicatedness involved in obtaining the refund declare below various conditions relating to “Invoice, CHA company, Port providers, and Amount of Rs. 500/-”, we in this article are unveiling the problems present in the Service tax refund mechanism below several solutions as specified in the Notification No. 17/2009-ST (herein soon after referred to as Mentioned Notification). For instance CHA service, Port Company, Courier Company and Insurance Company etc. This is the fifth article in the sequence wherein the comprehensive scenario is getting elaborated with the means of humorous poems and conversation among Johnny (an assessee) and his father but the main motive is to bring out the difficulties confronted by exporters.

Johnny and Jill went up the hill, to get the refund purchase
Johnny came back again with a lack
And Jill came hopeless following.

The assesses claiming refund orders underneath previously mentioned pointed out companies are encountering tremendous complexities in finding their refund orders passed on vague and futile justifications that not only are frustrating and irritating the assessees but also deprives absent the faith of assessees on the refund mechanism intended by the Authorities. This sort of reasons on which the division is refusing the refund statements on the explained providers are becoming created out hereunder as follows: -

Johnny-Johnny!  Yes papa!

Received the refund?

No Papa,

Telling lies?

No Papa,

What’s the purpose?

This papa: -

Johnny says:  I went to the department to get the refund for numerous specified services availed by me in relation to export of merchandise, but department stated: -

Johnny-Johnny go absent,
Come once again another day.
Your refund buy has adhering to Flay: -

The order passed by Adjudicating Authority says that the declare of service tax below said notification was filed by us for the consignments shipped prior to 07.07.2009. Thus the declare is not acceptable as “bar of limitation” applies in our circumstance. This is one particular of the pre circumstances for availing the gain of refund claim that the products should be presented allow export purchase prior to 07.07.2009 under stated notification. The notification arrived on 7.7.2009 and as such refund claim prior to this date are not able to be filed.

Johnny’s Watch: 

In relation to the allegation of time barred declare it is submitted that as per notification the refund claim should be filed in one particular year from the date of export of the products. As this sort of the “date of export” will be the date which will be considered for time limit of filing of refund claim. In our case the “Let Export Order” has been presented in Shipping Bill the date which was coming initial from the date of Export of Products. In this regard the pertinent bill of lading has by now been duly submitted by us. Hence the date of export is the day the items left the Indian Territory. As a result the date of export is right after 7.seven.2009. As this kind of this is extremely significantly coated beneath this notification as this is relevant from 07.07.2009. For this reason the declare does not appear under the purview of bar of limitation.

Johnny says:  I went to the department up coming day yet again with the above submission but department mentioned: -

Johnny-Johnny go away,
Arrive once again one more day.
Your refund buy has adhering to more flay: -

The Adjudicating Authority alleges that the date of export of goods will be the date as prescribed in the explanation provided in the notification. But we have not filed in prescribed time limit and as a result the refund is rejected.

Johnny’s Watch:

In regard to the above, we submit that as per explanation date of export will be the date as provided in section 51 of the Customs Act, 1962. The relevant provision is reiterated hereunder:-

Clearance of products for exportation- Where the correct officer is happy that any merchandise entered for export are not prohibited items and the exporter has compensated the duty, if any, assessed thereon and any costs payable below this Act in regard of the identical, the proper officer may well make an buy permitting clearance and loading of the merchandise for exportation.

As these it is provided in the previously mentioned talked about part that the date of export will be the date on which the appropriate officer can make the order for clearance of the merchandise for export. Hence the declare is inside time restrict.

Nevertheless, if we acknowledge for the sake of argument only that the date of export will be permit export order date than the claim is covered under the notification no. 41/2007 which prescribe the time restrict of six months. But the claim will then also inside the time lime. Now the section 11B of the Central Excise Act, 1944 will be relevant in our circumstance, in which the time restrict for refund declare is 1 year. For supporting their contention the appellant has referred the circumstance of CCE, Pondicherry vs G. Jijith Kumar [2009-TIOL-592-CESTAT-MAD] in which the refund claim was authorized which was filed past the time limit prescribed in the notification, with referring the part 11B of the Central Excise Act, 1944. But the department just said that the details of the over case are not related to this case. Further the appellant has submitted the scenario of M/s Ford India Pvt. Ltd. Vs. CCE, Chennai [2010-TIOL-1153-CESTAT- MAD], in which it was held that

Central Excise -Refund of duty paid on motor autos registered as taxis-Limitation – refund claims rejected on the ground that they were filed past 6 months period of time from the date of payment prescribed beneath the Notification- Statutory time period of 1 12 months as prescribed underneath the Part 11B is applicable and the refund statements are not able to be held to be barred by the limitation.

Hence in the above case the refund has been authorized in terms of area 11B of the Central Excise Act, 1944 past the time restrict as prescribed in the notification. The exact same ratio is relevant in our case also. But the case is not talked about by the department. Hence this has proved to be a non reasoned buy which is not justified in the light of decision of hon’ble Apex Court in the case of State of Himachal Pradesh Vs Sardara Singh [2008-TIOL-160-SC-NDPS]. In this circumstance it is made the decision as follows:-

Even Large Courts are needed to pass speaking reasoned orders – The “inscrutable face of a sphinx” is ordinarily incongruous with a judicial or quasi-judicial overall performance. The way in which appeal in opposition to acquittal has been dealt with by the High Court leaves a lot to be wanted. Causes introduce clarity in an purchase. On plainest consideration of justice, the Higher Court ought to have set forth its factors, howsoever short, in its order indicative of an application of its mind, all the much more when its order is

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