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2015 (3) TMI 346 - CESTAT BANGALORECenvat Credit - Refund under Rule 5 - nexus and its correctness - Norms for determination of nexus - period of limitation u/s 11B - Notification No.05/2006-Central Excise (N.T.) - Whether refund under Rule 5 of CENVAT Credit Rules would be admissible when there was no notification issued prescribing safeguards, conditions and limitation to be fulfilled by issue of a notification by the Government. - Held that:- this issue is not required to be dealt with by us because Notification No. 5/2006-CE (NT) dated 14.03.2006 was retrospectively amended by the Government and instead of words 'used in' the words 'used for' were replaced. Therefore wherever the refund claims have been rejected on the ground that the notification provides the benefit of refund when the inputs have been used in providing the output services will have to be set aside and will have to be reexamined in the light of amendment carried out with retrospective effect by the Government in Finance Act 2010. - Matter remanded back. Place of removal which has been a subject matter of dispute in several cases - Held that:- the place of removal has to be considered as port/airport/land customs station. Therefore once place of removal is taken as port/airport/land customs station all the services utilized up to the stage would become eligible for refund under Rule 5 of the balance of CENVAT credit. Whether CENVAT credit can be refunded under Rule 5 when there was no notification prior to 14.03.2006. - Held that:- refunds cannot be rejected on the ground that earlier Notification No. 11/2002-Cus. (NT) dated 01.03.2002 did not allow refund of credit available in respect of input services but limited only to inputs in view of the fact that during that time the rule itself did not provide for refund of credit in respect of input services. Nexus between the input services and the output services. - Held that:- the matter should be remanded to enable the appellant to establish integral connection between the service and the business of manufacture of final product, it is nobody's case that there is no need to establish the relation between the input services and the business of manufacture. Foreign Inward Remittance Certificate. - Held that:- what is required to be established by an exporter is that in respect of invoices raised by him, consideration in foreign currency has been received. This is what is required to be established. It is definitely possible for the proper officer considering the refund claim to verify the documents produced and come to the conclusion whether foreign remittances in respect of exports made have been received or not. If there is difficulty, they can definitely seek clarification. If it is found that claimant is misleading the department, Investigations can be taken up. If there is misdeclaration or mala fide, proceedings can be initiated. Rejection of refund claim on the ground that output service is not taxable. - Held that:- Hon'ble High Court in Repro India Ltd. [2007 (12) TMI 209 - BOMBAY HIGH COURT] took a view that even if export is not made under Bond or Letter of Undertaking, refund is admissible. Subsequently, amendment was carried out but during the period prior to such amendment, the decision would be applicable in any of the cases before us if export has taken place prior to amendment. Therefore, decisions in cases where credit has been denied or refund has been denied on the ground that export is not made under Bond or Letter of Undertaking cannot be sustained. Relevant date for filing refund claim. - Held that:- Section 83 of the Finance Act, 1994 makes provisions of Section 11B applicable for the purpose of service tax matters also. When Section 11B is applicable to service tax matters, we have to replace words 'excisable goods' used under Section 118 as 'services'. Therefore, for the purpose of refund, in view of the specific provisions of Section 83 and notification under Rule 5, it is necessary to substitute service in place of goods. We are not able to agree with the submission that this cannot be done. Therefore, provisions of Section 11B for the purpose of limitation would be applicable. Method for calculation of relevant date. - Held that:- After considering the decision of Hon'ble High Court of Madras in the case of C.C.E. vs. GTN Engineering (I) Ltd [2011 (8) TMI 960 - MADRAS HIGH COURT] this Tribunal had taken a view that for the purpose of calculating limitation in respect of claim for refund of tax paid on input service, the relevant date should be the date on which the consideration has been received where the claimant is service provider and consideration paid where the claimant is service receiver. This decision was rendered in the case of Hyundai Motor India Engineering (P) Ltd. vs. C.C.E. Hyderabad [2014 (7) TMI 329 - CESTAT BANGALORE]. Therefore in our opinion, this decision can be followed.
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