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2020 (1) TMI 186 - CESTAT MUMBAIRefund of service tax - export of services - rejection on the ground of time-barred or no nexus with the service received and service exported - also alleged that the payment has not been received from the service recipient - Rule 5 of the CENVAT Credit Rules, 2004 - whether the refund claims are time-barred? - HELD THAT:- As the issue has been settled by the Larger Bench of the Tribunal CCE & CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. [2018 (2) TMI 946 - CESTAT BANGALORE] holding that the time-limit under Section 11B of the Act for filing refund claims of Rule 5 of the CENVAT Credit Rules, 2004 has to be counted one year from the last date of the quarter and not from the date of receipt of FIRCs - Admittedly, the refund claim for the quarter January, 2015 to March, 2015 and April, 2015 to June, 2015 are filed on 11/03/2016 which are well within the one year period - the refund claims for January, 2015 to June, 2015 cannot be rejected as time-barred. Whether the amount of refund claim of ₹ 5,55,616/- can be rejected on the ground that the same pertains to earlier period? - HELD THAT:- The refund claim has been filed in time. Therefore, refund of ₹ 5,55,616/- cannot be held to be time-barred. Therefore, the said refund claim is admissible to the appellant. Whether the refund claim can be rejected on the ground that there was no nexus with input service and the service exported at the time of entertaining refund claims? - HELD THAT:- It is an admitted fact that, at the time of availment of CENVAT credit on input service on ‘general insurance’, it was not questioned to the appellant of this service having no nexus with the services exported by them. Therefore, the same cannot be questioned at the time of entertaining refund claim as held by this Tribunal in VERISIGN SERVICES INDIA PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX BANGALORE SERVICE TAX- I [2018 (2) TMI 927 - CESTAT, BANGALORE]. Further, the said insurance has been availed by the appellant in insurance of various movable assets which has been used for providing output service - Further, whether CENVAT credit is admissible on the service has been decided by the Tribunal in the case of M/S SARITA HANDA EXPORTS (P) LTD. VERSUS CCE, GURGAON-II [2016 (7) TMI 554 - CESTAT CHANDIGARH] wherein it has been held that the said service is having direct nexus with the output service provided by the appellant - on merits also the appellant is entitled to avail CENVAT credit on ‘general insurance’. Therefore, refund of the said CENVAT credit cannot be rejected. Whether it is mandatory that the service recipient itself is required to make payment for the service received and then only refund can be entertained? - HELD THAT:- There is no provision in law that payment of service provided by the appellant has to be made by the service recipient for entertaining refund application. It is a fact on record that the appellant provided the service and received FIRCs against those service. Therefore, refund claim is admissible to the appellant. The refund claims, except ₹ 1,35,319/- and ₹ 3,549/- on account of ‘tour operator service’, the appellant is entitled to claim refund - Appeal allowed in part.
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