Exemption can be availed later by way of refund claim/appeal :
It is not essential that exemption has to be claimed before supply of goods or services. It is possible to avail exemption by making a refund claim later, even if classification or assessment is done at higher rate – Bharat Earth Movers Ltd. v. Collector – 1991 (52) ELT 600 (CEGAT) also in CCE v. ITC Ltd. – 1993 (67) ELT 852 (CEGAT).
Even if an applicant (taxable person under GST) does not claim benefit under a particular exemption notification at initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage- Share Medical Care v. UOI (2007) 4 SCC 573 = 209 ELT 321 (SC) – quoted in BOC India Ltd. v. State of Jharkhand (2009) 21 VST 490 = 237 ELT 7 (SC) – also quoted and followed in Cipla Ltd. v. CC (2007) 218 ELT 547 (CESTAT), where it was held that benefit of exemption notification can be claimed atappellate stage also – also followed in CCE v. Vardhman Spinning (2008) 229 ELT 99 (CESTAT SMB) * Semco Electrical v. CCE (2010) 24 STT 508 (CESTAT SMB) *CC v. Global Vectra Helicorp (2013)
297 ELT 250 (CESTAT).
Exemption can be claimed at adjudication stage even if not claimed at investigation stage – Adani Exports v. CC (2007) 216 ELT 279 (CESTAT).
In Tas Engineering v. CCE 2001(131) ELT 275 (CEGAT SMB), it was held that if exemption was not claimed at the time of clearance, it can be claimed later by way of refund claim. Otherwise, section 11B of Act would be confined only to cases where excess payment of duty is made purely by arithmetical mistake.
No res judicata or estoppel in taxation – There is no ‘res judicata’ or ‘estoppel’ in taxation matters. Either (taxable person under GST) or department can change its stand/views about taxability and demand can be raised or refund/exemption can be claimed within time limit provided by law.
Exemption can be claimed later even if not stated in declaration of classification – An exemption can be claimed later even if it is not declared at the time of declaration of classification, as there is no estoppel against law – Gujarat State Fertilizers Co. Ltd. v. CCE – (1996) 13 RLT 219 (CEGAT 3 member bench). [Now declaration of classification is not required w.e.f. 1.7.2001, but the principle is still valid].
Exemption can be claimed even at appellate stage – Exemption can be claimed at any stage as it is a legal right – Technocrats India v. CCE (2012) 279 ELT 268 (CESTAT).
A claim for exemption can be made for first time in appeal before Appellate Authority or even in de novo proceedings – Bharti Surgical Co. v. CC 2005 (184) ELT 287 (CESTAT) [see case law under ‘Additional grounds in Appeal’ in another chapter].
Exemption cannot be denied stating that it was an after thought – An exemption is a question of law and can be raised at any stage. Benefit cannot be denied holding the claim as after thought. – HindustanTyresoles v. CCE 2001(131) ELT 699 (CEGAT) * Sonic Band International v. CCE 1999(109) ELT 524 (CEGAT).