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2020 (5) TMI 449 - AT - Service TaxRefund of the CENVAT Credit - time limitation as provided in section 11B of CEA - part of the refund rejected on the ground that the claims were filed beyond the period of limitation specified in Section 11B - relevant date is the date of realisation of foreign exchange or not - HELD THAT:- There is no case in which Section 11B mandates that the date of invoice must be considered as the relevant date. The residual category under section11B is the date of payment of duty. In this case there is no payment of duty at all. If this residual category is considered, the relevant date will never begin. If the department’s argument has to be accepted, the refund can be claimed at any time. In order to avoid such absurd conclusions, the Tribunal has considered as to what constitutes an export of service under the Export of Service Rules and concluded that the date of realisation of foreign exchange must be the relevant date. If the export is not complete, the exporter of services is not entitled to claim refund under Rule 5 of CCR 2004. Harmoniously reading the Export of Services Rules and Section 11B of Central Excise Act, 1944, the Tribunal has held a view that in case of export of services, the relevant date must be the date of realisation of foreign exchange. We find that CBEC has also subsequently come to the same conclusion and issued Notification No. 14/2016-CE(NT), dated 01.03.2016, removing the lacuna in the initial Notification No. 25/2012-CE, dt. 18.06.2012 and bringing it in harmony with the decisions of the Tribunal. The Commissioner (Appeals) has only followed the orders of the Tribunal - the CBEC has also modified their notification subsequently harmonising it with the decision of the Tribunal - there are no difference on the facts of the case law relied upon by the Commissioner (Appeals) in the present case and - there is nothing in Section 11B to reckon the date of invoices as the relevant date as prayed for in this appeal by the Revenue. Appeal dismissed.
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