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2023 (9) TMI 1100 - AT - Service TaxRefund of input service tax credit - export of services - rejection on the ground that the refund claim filed is beyond the time limit of one year as provided under Section 11B of Central Excise Act, 1944 read with Rule 5 of CENVAT Credit Rules, 2004 - error in computation of the total eligible credit - services have no nexus with the output services provided by the assessee - wrong application of formula for calculating the eligible refund. Rejection of refund alleging that the refund claim filed is beyond the period of one year - HELD THAT:- The authorities below have computed the period of one year form the date of invoice. The Larger Bench of the Tribunal in the case of CCE & CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. [2018 (2) TMI 946 - CESTAT BANGALORE] has held that in the case of refund in respect of services exported, the relevant date for computation of the period of one year is the date of realization of the foreign exchange and not the date of invoice. Following the said decision, this issue answered in favour of the assessee and against the Department. Rejection on the ground that error in computation of the total eligible credit - HELD THAT:- It is seen that the assessee is discharging Service Tax under Manpower Recruitment and Supply Agency Services as the recipient of service under reverse charge mechanism. This cannot be considered as the domestic turnover. While applying the formula, the output service provided by the assessee in the domestic area has to be considered. The quantum of domestic turnover in regard to renting of immovable property would be only Rs.39,85,984/-. On the basis of records, this issue is found to be in favor of the assessee and against the Department. However, the same requires to be remanded to the original authority for recalculation by applying the correct domestic turnover. Rejection of refund in respect of various services alleging that these services have no nexus with the output services provided by the assessee - period prior to 01.04.2011 - HELD THAT:- The authorities below have relied upon the decision in the case of COMMISSIONER OF CENTRAL EXCISE, NAGPUR VERSUS MANIKGARH CEMENT WORKS [2009 (11) TMI 142 - CESTAT, MUMBAI] which has in turn relied upon the decision of the Hon’ble Apex Court in the case of Maruti Suzuki Ltd. (supra), the decision rendered by the Hon’ble Apex Court in the case of M/S. MARUTI SUZUKI LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2009 (8) TMI 14 - SUPREME COURT] is with regard to inputs and not input services. The same is not applicable to the facts of the case. After considering the various services, we are of the view that the rejection of the refund claim alleging that these services have no nexus with the output service provided by the assessee is without legal or factual basis. The issue is held in favor of the assessee and against the Department. Wrong application of formula for calculating the eligible refund - HELD THAT:- While calculating the refund, the authorities below have deducted this amount of Rs.5,07,018/- instead of applying the total input credit availed by the assessee. It is found that the contention of the assessee is correct. The total input credit availed by the assessee which is Rs.5,82,75,522/- has to be taken for calculating the eligible refund. This issue is found in favour of the assessee and against the Department. However, the issue requires to be remanded to the adjudicating authority for calculating the correct eligible refund. The Department has filed an appeal against this issue alleging that the credit availed after the last date of export is not eligible for refund. It is noted that the export being a continuous process and when the refund claim is filed periodically for different quarters, there is no requirement of one to one co-relation. The credit availed for the exports have to be considered. The Commissioner (Appeals) has rightly granted refund in respect of Rs.7,19,638/-. This issue is found in favour of the assessee and against the Department. The matter remanded to the adjudicating authority to reconsider the issues with regard to calculation of eligible refund - appeal allowed by way of remand.
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