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Judgment
Appeal is filed against order in appeal dated 27.8.2009 which upheld the order in original dated 28.1.2008 in terms of which rebate claim of
Rs.13,59,338/-was rejected.
The appellant had filed rebate claim in terms of Notification No. 11/2005- ST dated 19.5.2005 issued under Rule 5 of Export Service Rules 2005.
The period covered for the rebate was August 2005 to January 2006 and the application for refund was filed on 29.6.2007. The primary adjudicating
authority held that as the rebate application was filed after one year from the date of payment of service tax, the rebate claim was time-barred.
The appellant has contended that the rebate was claimed under Rule 5 of Export Service Rules read with Notification No.11/2005 - ST and in that
notification there was no limitation period prescribed for filing rebate claim and therefore its claim cannot be rejected as time-barred. It cited the
judgement of Madras High Court in the case of Dy. Commissioner of C. Excise, Chennai Vs. Dorcas Market Makers Pv. Ltd. - 2015 (321) ELT 45
(Madras) and Punjab & Haryana High Court in the case of JSL Lifestyle limited Vs. Union of India - 2015 (62) Taxmann.com 46 (Punjab and
Haryana).
Ld. DR contended that even in the absence of time-limit in the concerned notification time-limit of one year applicable to refunds/rebates as per
Section 118 of Central Excise Act, 1994 made applicable to service tax matters vide Section 83 of Finance Act, 1994 will be applicable and therefore
the rebate was rightly rejected as time-barred.
We have considered the contentions of both sides. We find that in terms of Rule 5 of Export of Service Rules, 2005, the rebate claim is only subject
to such conditions or limitations and fulfilment of such procedure as may be specified in the notification. In the concerned Notification No.11/2005 -
ST there was no time-limit prescribed during the relevant period. A combined reading of Rule 5 of Export of Service Rules, 2005 and Notification
11/2005 -ST makes it clear that the rebate scheme under the said rules is a self-contained scheme and it nowhere invites the condition of one year for
filing the application for rebate. Madras High Court in the case of Dorcas Market Makers Pvt. Ltd. (supra) held that rebate of excise duty in terms of
Rule 18 of Central Excise Rules, 2002 sanctioned in terms of Notification No.19/2004 - CE dated 6.9.2004 cannot be rejected on the ground of time-
bar as the said notification did not contain any time-limit for claiming rebate. We find that Rule 18 of Central Excise Rules 2002 is essentially pari
materia Rule 5 of the Export of Service Rules and Notification No.19/2004 -CE dated 6.9.2004 also did not contain any time-limit as was the case in
respect of Notification No.11/2005 - ST. Thus the ratio of the Madras High Court judgement in the case of Dorcas Market Makers Pvt. Ltd. is
squarely applicable to the present case. Indeed similar view has been held by Punjab Haryana High Court in the case of JSL Lifestyle Ltd. (supra)
and also by Delhi High Court in the case of Sony India Pvt. Ltd. Vs. CC, New Delhi- 2014 (304) ELT 660 (Delhi).
In the light of the foregoing analysis, we find that the rejection of the appellants rebate claim on the ground of time-bar is not sustainable.
Accordingly, we set-aside the impugned order and allow the appeal with consequential relief.