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2017 (10) TMI 17

Head Note:
100% EOU - Refund of unutilised CENVAT credit - time limitation - the CESTAT Bangalore, relying on the judgment in Eaton’s case [2010 (12) TMI 71 - CESTAT, MUMBAI], held that the relevant date for filing the refund application under Sec.11B of the Excise Act would be the date of receipt of consideration for service rendered and not the date when the services were provided. This finding of the CESTAT is challenged in the appeals on the main plank of argument that there is a contrary decision reported in M/s. Affinity Express India Pvt. Limited vs. Commissioner of Central Excise, Pune-I [2014 (6) TMI 593 - CESTAT MUMBAI] - the point is whether M/s.Affinity’s case will have any impact on the present appeals? - Held that: - The Larger Bench of CESTAT, West Zonal Bench, Mumbai having noticed the decision of a Division Bench of Tribunal, Delhi in Bechtel India Pvt. Ltd. vs. Commissioner of Central Excise, Delhi [2013 (7) TMI 490 - CESTAT NEW DELHI] to the effect that the refund can be claimed after foreign exchange was received in India in respect of export of service, held that in view of the Division Bench decision and as no contrary decision was brought to its notice, no reference lies to the larger Bench. Thus in essence, the decision in Bechtel’s case being a decision rendered by Division Bench was approved and held to prevail over the decision in M/s.Affinity’s case relied upon by the appellant. As such, the decision in M/s.Affinity’s case will not have any impact on the present appeals.

Whether CESTAT is correct in holding that the assessee is eligible to claim of refund of CENVAT credit on construction service relying on case of Infosys Ltd. [2014 (3) TMI 695 - CESTAT BANGALORE]? - Held that: - It should be noted that the appellant in the Grounds of Appeal mentioned that as against the Infosys Ltd.’s case (2 supra), the department filed appeal before the Hon’ble Apex Court and the same is pending but failed to produce copy of the Grounds of Appeal or any stay order granted by Hon’ble Apex Court staying the judgment in Infosys Ltd.’s case. It is also not known whether a final order is passed by the Apex Court in the said alleged appeal. In these circumstances, we can only uphold the decision of the CESTAT, Bangalore relying on Infosys Ltd.’s case. This point is accordingly answered against the appellant.

Whether the Tribunal is correct in remanding the matter with regard to the claim of refund of CENVAT credit on other services such as courier service, repair or maintenance services, telephone service, rent-a-cab service, management consultant service, chartered accountant service etc, since the said services are not having nexus with their output services i.e Consulting Engineering Service which was exported online? - Held that: - This point is concerned, the CESTAT, Bangalore only remanded the matter to the original adjudicating authority to consider the other refund claims afresh. As such, we do not find any infirmity or irregularity therein. The appellant can put-forth its objections if any with regard to those claims and the original adjudicating authority can pass an order on merits with regard to the other claims. Accordingly this point is answered.

Appeal dismissed - decided against appellant.


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