Professional Documents
Culture Documents
To understand about What is Refund/Rebate Eligibility and Right to claim the refunds/rebates Various situations entitling the refunds/rebates
refund/rebate claims
Other refunds
What is Rebate/Refund: Rebate/refund will arise only when duty is paid - (PUNJAB KHAND UDYOG LIMITED
VERSUS COLLECTOR OF C. EX., CHANDIGARH- 93 ELT 813 )
Refund in a taxing statute is to be made not on the ground of compensation for loss or damage sustained by a tax-payer but on the principle of restoration to the tax-payer of what had been collected from him without justification of law. It is nothing but `restitution or `compensation. - (MAFATLAL INDUSTRIES LTD. Versus UNION OF INDIA-89 ELT 247 SC) Refund of tax means returning to the assessee what had been taken or received from him unlawfully - (Webster Comprehensive Dictionary, International Edition
1984)
Others
Refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;- (Section 11B of Central Excise Act 1944)
Others
No rebate under Export of services Rules is claimed No Drawback claimed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, Final product cleared for export under bond or letter of undertaking No unjust enrichment accrued to the claimant Export of goods or taxable services should be in accordance with CER or Export of Services Rules, 2005 Claim once in a quarter If Export turnover is more than 50% of Total turnover or claim is by EOU- claim may be made once in a calendar month Application should be in form A To the AC/DC in whose jurisdiction the factory is situated along with bill of export/Shipping Bill or the registered premises of service provider from which the output services are exported Along with Copy of invoices/Bill of export/shipping bill and FIRC
Others
Certificate from a Statutory Auditor or Tax Auditor if the refund claim exceeds Rs.5 Lakhs in a quarter
Certificate by the BOD or a partner or proprietor if the refund is less than Rs.5
Lakhs in a quarter Time Limit to claim refund: Within one year from the date of export. What is the date of export? Limitations: The refund of un-utilized input service credit will be restricted to the extent of the ratio of export turnover to the total turnover for the given period to which the claim relates i.e. Maximum refund = Total CENVAT credit taken on input services during the given period ( Export turnover Total turnover).
Others
Application in FORM A Registration Certificate FIRC Copies CENVAT Credit details Copies of Export Invoice/s Copies of Input service invoices and Inputs purchase invoices Copies of agreement with overseas clients/customers Copy of ST-3 Write up on services exported Declaration that Duty Drawback is not availed under Customs and Central Excise
Duty Drawback Rules 1995 or Rebate of service tax under EOS Rules, 2005
Others
Write-up on relation between the input services and the export services
Draft Circular seeking suggestions from the stake holders to simplify and clarify the eligibility criteria's for refund of un-utilized CENVAT. The draft circular was
open for the suggestions or feedback from the stake holders till 30.11.2011
Others
Whether the inputs/input services should be used exclusively for export of services? Whether CENVAT on Capital goods is eligible for refund ? Where do you refer to understand the term Export of Services? Whether the registration of the premises of the service provider is necessary before Exporting the Output Services What is the maximum Time limit to sanction the refund claim What is Total Turnover?
Others
The amount of taxes you pay depends, to some extent, on how much petrol you buy.
Services
Need not be wholly used in providing them Such Taxable services are exported to any country
Others
Prior Declaration: File a declaration with the jurisdictional AC or DC with the details of output services envisaged to be exported with,
Description, quantity, value, rate of duty and the amount of duty payable on inputs actually required to be used in providing taxable service to be exported;
Description, value and the amount of service tax and cess payable on input services actually required to be used in providing taxable service to be exported. (Tentative Values )
Verification of the declaration by the AC/DC for the correctness. If necessary call for any information or samples of inputs and accept the declaration if satisfied
Presentation of claim: Filed within 1 year from the date of Export of Services
Others
Documentation: Application in Form ASTR-2 CENVAT Invoices Copies of Export Invoice FIRC Copies Registration Certificate Input service / inputs details Declaration stating the output services are exported Copies of Input service invoices and Inputs purchase invoices
Others
Questions: ? Whether prior declaration is mandatory? ? Whether rebate can be claimed on service tax paid on capital goods used for Export of services ? Whether actual receipt of Convertible Foreign Exchange is mandatory ? Whether the rebate is of service tax paid on the input services or CENVAT credit in relation to input services
Others
while fine is a tax for doing something wrong, a tax is a fine for doing something right.
Eligibility: Taxable services are exported Exported with payment of service tax
What is refunded: Service tax and Cess paid on taxable service exported
Procedure: Claim filed with the AC/DC FIRC Copies are obtained from the Banker and filed along with the claim Proof for payment of service tax on exports
Others
Application in form ASTR-1 Export Invoices copies FIRC Copies Registration Certificate Input service inputs details
Others
Objective
Others
Objective
Notification No.
Period
Area
Exemption
Outside SEZ
Partly inside/outside SEZ Wholly consumed inside SEZ Partly inside, partly DTA or Common
Others
Eligibility Criteria: Taxable services received by SEZ developer/unit for the authorized operations in SEZ Benefits: By way of full Exemption from charging of service tax by the service provider By way of refund of service tax paid Essential requisitions for availing full exemption The SEZ does not have any operations other than SEZ operations or Has other operations also but the subject services are wholly consumed within SEZ List of services approved by the Approval committee and certificate issued by DC/ADC of SEZ(Application should be made to the DC of SEZ) If SEZ does not have any operations other than SEZ operations, then a Declaration to that effect with the details of services required for operations and the name of the service providers Note: Has an option to pay service tax without availing the exemption. Why?
Others
What is wholly consumed in SEZ Category I Taxable Services in relation to Immovable property situated within SEZ (First category services mentioned in EOS Rules)
Category II
Taxable services wholly performed within SEZ (Second category mentioned in EOS Rules, 2005)
Category III
Other taxable services (Third category services mentioned in EOS Rules) if the SEZ does not have any business other than SEZ operations
Declaration by the wholly SEZ is mandatory to that effect
By way of refund if not wholly consumed in SEZ Of service tax paid on the services used fully for SEZ operations Of service tax paid on the common services - Partial refund If not wholly consumed
Others
Objective
Time limit : 1 year form the date of actual payment of service tax
Others
Objective
Others
Objective
Other requisitions Amount of Turnover in Table C should be verified and certified as true by the Statutory Auditor of SEZ unit. Based on Form A-3, after verification a service tax code number will be allotted within seven days of the receipt of declaration.
Others
Questions: Under what circumstances SEZ developer needs to claim only refund on duties/service tax paid instead of exemption? What is the procedure to be followed by SEZ developer/SEZ unit to obtain exemption certificate? Whether refund claim filed by SEZ developer/Unit can be rejected by the authority, If yes, under what situations?
Others
Others
Other refunds
Scenario:
Objective
Mistaken Service tax payments Excess payment of Service tax Issuance of credit note and claim of refund due to excess payment Wrong classification and payment of service tax
Unjust Enrichment:
Unless disproved by the assessee, the refund would be credited to the consumers Welfare fund (Corporation Bank Vs.Saraswathi Abharanasala 2009 19 VST 84 SC)
Claim Procedure
Application can be in a plain paper Along with the relevant documents substantiating the claim If rejected on time limit grounds-File a writ petition
Other Refunds
Other refunds
Unjust Enrichment:
Objective
UOI vs. Ltd AIR 1989 Bom 183 HC . Introduced w.e.f 20.09.1991 in CEA
Questions:
Who can claim the refund? Assessee who paid the duty or the buyer who borne the duty Whether refund claim valid even if the claim is not made in proper format?
Whether time limit is mandatory? Yes, unless the duty recovered unconstitutionally Anam Electrical Mfg co. 90 ELT 260 (SC) 1997
Other Refunds
Natraj & Venkat Associates Vs.ACST 2010 26 STT 232 Mad HC & KVR Constructions Vs.CCE (2010) 25 VST 525 Kar HC: No time limit if amount paid is not taxAlcatel Modi Networks Vs.CCE 12 STT 240( 2008) P&H HC Time Limit not applicable when duty is paid under protest-
Opel Alloys Vs.CCE ( 2010) 249 ELT 408 Amount deposited during investigation is deemed to be paid under protest. Time limit is not applicable
Whether certificate from a CA is sufficient to prove the non passing of the duty burden? Mixed judgments
Other Refunds
Shankara Ramachandra Auctioneers 2010 (26) STT 421 (CESTAT SMB) Refundable amount showing as Current Asset in the books of account ( mixed judgments) CCE Vs.SCB 2006(6 STT 338 CESTAT BLR - affirmed by Kar HC Refund of service tax if paid on billed amount and collected less from the customer/client Bharat Heavy Electricals Vs. CCE 2010 (253) ELT 339 When tax paid twice by mistake No unjust enrichment
GTN Engineering (I) Ltd-Guj HC -2010 (259) E.L.T. 625 (Tri. - Chennai) Time limit is not applicable for claiming refund under Rule 5 of CENVAT Credit Rules Philco Exports Vs.CCE (2009) 234 ELT 568 Month to month relation of inputs is not required
Other Refunds
CCE, Ludhiana Vs. Bharat Box Factory Ltd -2007 (218) E.L.T. 355 (P & H) Vardhaman Industreis Ltd Vs.Commissioner 2011 (SC) 267 ELT A025 Whether duty paid at the time of clearance of goods and collected from customers can be refunded if post clearance transaction is made through credit note?YesRatio: No case of unjust enrichment arising from the case. Assessee did not receive higher duty amount or price from the buyers and no amount of duty was passed on to the customers
Commissioner of Service Tax, Bangalore Vs Shiva Analyticals (I) Ltd 2009 (14) S.T.R. 301 (Kar.) Due to non rendering of the service, the respondent issued credit notes towards refund of service tax refund granted earlier was asked to be repaid by the commissioner on grounds of unjust enrichment Refund granted Ratio: Since the respondent issued credit notes towards refund of service tax, the refund order passed by the original authority is legal and proper
Other Refunds
IN RE: I. SEVA SYSTEMS PVT. LIMITED 7 STR 242 (Commissioner Appeals BLR) Although, exempted from payment of service tax, the call center service is still a taxable service inasmuch as it is not eliminated from the list under clause (105) of Section 65 of the Act and hence eligible for rebate under the Notification No. 12/2005-S.T., dated 19-4-2005 which does not restrict grant of rebate to any exempted output service Further, as regard to the verification of the documents relating to proof of export/realization of foreign exchange, the same could have been verified by writing to the bankers instead of rejecting the claim on purely procedural matters
KVR Constructions Vs.CCE Kar HC 17 STR 006 Service tax paid on non- taxable services by mistake. Payment of service tax on non taxable services is deemed to be a deposit made Relied on: M/s. Motorla India Pvt. Ltd. v. CCE, Bangalore-III in the Honble High Court of Karnataka, 2006 (206) E.L.T. 90 (Kar.).
Other Refunds
Refund granted
Refund of Un utilized CENAVT Credit
Rebate Under Notification No.12/2005 Rebate Under Notification No.11/2005 SEZ
Ratio: Rule 6(6) of CCR Rules provides that proviso to Rule 6(1) shall not apply to a case of exported goods removed without payment of duty cleared for export under bond Rule 5 of the CCR provide for refund of un utilized CENVAT when input or input service is used in the manufacture of final product which is cleared for export under bond The goods were cleared under bond, though it was not required as the goods were exempt. But still they fall under Rule 6(6). Relied on Repro India Ltd Mumbai HC
Other Refunds
Open for
Refund of Un utilized CENAVT Credit Rebate Under Notification No.12/2005
SEZ
Other Refunds
Avoidance of taxes is the only intellectual pursuit that still carries reward
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