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2015 (11) TMI 107

Head Note / Extract:
Refund claim - Unutilized CENVAT Credit - Determination of Date of Export of service - Rule 5 - Period of limitation - Held that:- export of service shall complete only when the (a) services is provided from India and use outside India (b) payment of such services is received by the service provider in convertible foreign exchange. In the present case it is undisputed fact that though the part of the services provided in the year 2007 and part of the services provided in the quarter April, 2008-June,2008 but remittance in convertible foreign exchange were admittedly received by the service provider during 5/8/2008 to 19/11/2008 therefore even applying Section 11B one year period expire on 5/8/2009 whereas the refund was admittedly filed on 15/4/2009 that is well within the one year time period as provided under Section 11B therefore the refund claim is not liable for rejection on time bar.

Export of service is complete only when foreign exchange is received in India as per Export of Service Rules, 2005 (i). In the Section 11B, relevant date for refund of export of goods is date of export. Section 11B is made applicable for claiming refund under Rule 5 of the Cenvat Credit Rules as per condition 6 of Notification 5/2006. In case of export of Services, export is complete only when foreign exchange is received in India. Therefore relevant date of export of services is date of receipt of foreign exchange. In the present case all the four claims have been filed within 1 year from the date of receipt of foreign exchange and are therefore filed in time and cannot be held as time barred. - Lower appellate authority has also held that in the case of export of service the relevant date is the date when the assessee has received the payment of service exported and within one year from the date of receipt of the payment of service exported, the assessee is required to file the refund claim.

It is a case of refund under Rule 5 in respect of export of services for which export has been defined in the Export of Service Rules, 2005. Section 11B only specifies one year period from the relevant date and relevant date is not same in respect of goods as well as services. Since the fact of the present case is different from the case of GTN Engineering (I) Ltd, [2011 (8) TMI 960 - MADRAS HIGH COURT] the same is not applicable. In view of the above discussion, I find that Ld. Commissioner (Appeals) has rightly allowed the refund to the respondent. - Decided against Revenue.


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