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2019 (7) TMI 7 - AT - Service Tax100% EOU - Refund of unutilized CENVAT Credit - export of output service - Rule 5 of Cenvat Credit Rules 2004 - Section 11B of Central Excise Act, 1944 - HELD THAT:- It is clear that the refund claim was of input service credit taken on input or input services, in providing input services, i.e., export without payment of Service Tax, meaning no refund of duty was ever claimed. Clearly, therefore, there is no dispute as to the applicability of Rule 5 and hence, the authorities have no choice but to go by the formula prescribed thereunder and workout a refund. Once both assessee and the Revenue agree that a case under Rule 5 ibid is made out, then, the denial of refund claim of the assessee should only be as per the said Rule alone and as provided in the proviso below Rule 5. We have Notification No.5/2006-CE (NT) dated 14.03.2006 and Notification No. 27/2012-CE (NT) dated 18.06.2012 laying down procedures, safeguards, conditions and limitations for the guidance of the officers working out such refund - Considering the period involved, there is no doubt that it is Notification No. 27/2012-CE (NT) which applies and therefore, the above notification should be applied in full by the authorities while working out the refund - In the case on hand, the authorities have rejected the refund claim holding that the claims for refund were time barred which is one of the sub-clauses under clause 3.0 of Notification No. 27/2012 ibid. The refund claim of the appellant is not a claim under Section 11 B per se and therefore provisions of 11 B cannot be blindly applied in this case because, there is no disputes that the refund claim was under Rule 5 and the allowability or otherwise could only be as per the guidelines or the proviso under Rule 5 ibid - Rule 5 extracted supra prescribes the formula for determination of refund of Cenvat credit, subject to procedure, safeguards, conditions & limitations as may be specified by the Board; and it is that Notification which refers to Section 11 B as one of the conditions which is not the only condition. This may not be without a reason. The ruling in the case of CCE & CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. [2018 (2) TMI 946 - CESTAT BANGALORE] squarely applies to the facts of the present case where it was held that in respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis - thus the relevant date as also the time limit specified in the above case is required to be applied in the present case as there is no disputes that the application for refund was very much within one year from the date of BRC in this case. In the impugned order, Ld. Commissioner (Appeals) has, however, remanded one of the issues, i.e., for re-quantification of total turnover, which is one of the key component in the formula prescribed under Rule 5, ibid. Therefore, when one of the components itself is not clear then it is not practical to workout the refund and therefore, the above appeals are also required to be remanded to the file of the original authority for this limited purpose of working out the refund. Appeal allowed in part and part matter on remand.
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