STATE Vs. T T LIMITED

JUDGEMENT

(1.) The question of law urged by the revenue in this appeal pertains to the correctness of the tribunal's order whereby it directed the adjudicating authority to sanction the respondent/assessee's refund claim after verifying the documents.

(2.) The brief facts are that the respondent is an exporter of manufactured cotton yarn. It sought refund on the strength of Notification No.41 of 2007, as amended by later Notifications Nos.17/2008, 3/2008 and 33/2008. The adjudicating authority in the first instance rejected the claims; the matter was remitted by the appellate commissioner upon which the refund was partly granted to the tune of '8.48 lakhs. The assessee once again appealed. In the course of the appeal, the commissioner - in the order-in-appeal dated 02.09.2011, held that substantial exports of the assessee were eligible for service tax refund - approximating Rs. 43.44 lakhs. The commissioner, however, remitted the matter for working out the refund claims having regard to the document particulars. Specific directions were issued to the adjudicating authority to examine the documents and co-relate them as to whether the assessee could claim the amounts. The adjudicating authority by its order dated 06.11.2012 held that the assessee was ineligible for the refund claim.

(3.) The revenue which is in appeal contends that the CESTAT's reasoning is untenable. It relies upon the text of the amending notifications, particularly the terms of Notification No.17/2008 and Notification No.33/2008 both of which clearly state that the amendment would come into force upon the date of publication in the Official Gazette. It is also contended that the base notification (No.41/2007) itself superseded the earlier notification (i.e. No.40/2007 dated 17.09.2007. That notification had listed only services. The subsequent base notification clearly saved only those actions which had actually been done or omitted to be done. Reliance is placed upon the term "except as respect things done or omitted to be done before such supersession". Thus, it was urged that the benefit of refund notifications, was only in respect of services made after their publication. Learned counsel relied upon the decisions of the Supreme Court in Commissioner of Customs, Bangalore vs. Spice Telecom, 2006 203 ELT 639 and Jay Mahakali Rolling Mills vs. Union of India, 2007 215 ELT 11. It is pointed out that these two judgments enunciatively ruled that unless subsequent notification which amends an earlier exemption or inclusion contains a clear phrase pointing to the notification Relating back, the courts would give effect to it only from the date of their publication or issuance. It was submitted that Jay Mahakali Rolling Mills'case rejected the arguments that the inclusion of a notification even if it were by retrospective amendment should be construed only as clarificatory.