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2014 (12) TMI 203

Head Note:
Denial of refund claim - Scientific and Technical Consultancy Service - whether the refund claims have been filed within the time limit prescribed in Rule 5 of the Cenvat Credit Rules read with notification No. 5/2006 and Section 11B of the Central Excise Act - Held that:- Under Section 83 of the Finance Act, the provisions of Section 11B of the Central Excise Act, shall apply in relation to service tax as they apply in relation to a duty of excise. Therefore, it is inferred that just as the relevant date in the case of Central Excise is the date of export of goods, the relevant date in the present case would mean would be the date on which the services are exported. This view is also stated in the case of M/s. Affinity Express India Pvt. Ltd. (2014 (6) TMI 593 - CESTAT MUMBAI) and GTN Engineering (I) (2011 (8) TMI 960 - MADRAS HIGH COURT). This being my stated view, the respondent would be eligible for refund in respect of all invoices except two invoices, namely invoice No. RPIN/EOU/2008/033 dt. 27/06/2008 and invoice No. RPIN/EOU/2008/037 dt. 30/06/2008 under which the services were provided in 2007 but billed in June 2008 and for which refund is claimed on 15.4.2009.

There are conflicting decisions of Tribunal on the issue in different case; therefore, issue is referred to the President for consideration by the Larger Bench.

Whether the "relevant date” for deciding the limiting period of one year under Clause 6 of Appendix to Notification 5/2006-CE(NT) dt. 14.3.2006 for sanction of refund of Cenvat Credit under Rule 5 of Cenvat Credit Rules read with Notification No. 5/2006-CE(NT) dt. 14.3.2006 in the case where service is exported is

(a) The date of export of service, or

(b) The date of export invoice, or

(c) The data of receipt of foreign exchange whether is part of full or advanced

Or

(d) The date when both activities have been completed i.e. service has been exported and foreign exchange has been received (as foreign exchange may be received in advance).

 


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