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2014 (6) TMI 593

Refund claim - Export of services - period of limitation - Rule 5 of the Cenvat Credit Rules, 2004 - Notification No.5/2006 CE(NT) - period fo limitation to be computed from the date of invoice / export or from the date of receipt in convertible foreign exchange - Held that:- Of course, if payment for export of service is to be obtained in rupees or non-convertible foreign exchange, then it will not be treated as export of service. Further, reading of Rule 4 of the Export of Service Rules indicates that any taxable service may be exported without payment of service tax. If rule 3(2) is to be read as export will take place only after receipt of payment in convertible foreign exchange then except in case of advance payment no service can be exported without payment of service tax. Thus a harmonious reading of sub-rule (2) to Rule 3 and Rule 4 would indicate that the services are exported when (i) these are provided from India and used outside India and (ii) payment terms are in convertible foreign exchange. In the present case, the appellants are providing business auxiliary service and management consultancy services. Thus the export of service takes place at the time or issuing inv .....

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t of the export of service or at least from the last day of the quarter for which the refund claim pertains (refund claims under Rule 5 are to be made on quarterly basis), the time limit is only a procedural and cannot be considered as mandatory or substantive law. The case law quoted by the ld. advocate are as under:- (1) CCE Jalandhar vs. JCT Ltd - 2013 (296) ELT 426 (Tri-Del). (2) CCE, Ahmedabad vs. Rangdhara Polymers - 2011 (264) ELT 275 (Tri.-Ahmd.) (3) Global Energy Food Industries vs. CCE, Ahmedabad - 2010 (262) ELT 627 (Tri.-Ahd.) (4) Alcomponics Sales Pvt.Ltd. vs. CCE, Noida - 2012 (279) ELT 280 (Tri.-Del.), (5) Uttam Steel Ltd. vs. Union of India - 2003 (158) ELT 274 (Bom.); (6) STI India Ltd. vs. Commr. of Cus & C.Ex. Indore 2009 (236) ELT 248 (M.P.); (7) Comm. Of C.Ex & Cus, Surat-I vs. Swagat Synthetics 2008 (232) ELT 413 (Guj.) (8) CCE.Ex. Pune-1 vs. Eaton Industries P. Ltd - 2011 (22) STR 233 (Tri.Mum.) (9) Vadofone Cellular Ltd. vs. CCE, Pune. III dtd 17.1.2014 (10) Deepak Spinners Ltd. vs. Commr. of C.Ex, Indore - 2014 (302) E.L.T. 132 (Tri.-Del.) 3. Ld. A.R. on the other had submitted that the whole issue about the time limit has been examined by the Hon&# .....

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The appellants are claiming refund of accumulated Cenvat Credit under Rule 5 of the Cenvat Credit Rules read with Notification No.5/2006-CE(NT) dated 14.3.2006. Clause (6) of the Appendix of the said Notification reads as under:- The application in Form A. alongwith the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994, in original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in Section 11B of the Central Excise Act, 1944(1 of 1944). (Emphasis supplied) 5. Thus the Notification prescribes that the claim for refund has to be filed before the expiry of the period specified under Sec. 11B of the Central Excise Act. Section 11B of the Central Excise Act deals with claim of refund/rebate of duty. Sec.11B (i) provides the limitation period of one year. Further, Clause (B) to Explanation in Sec. 11B (B) defined the relevant date' from which the period of one year is to be computed. The said explanation explains relevant date for different situat .....

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cation was issued and Clause 6 of the Appendix contemplates that the claim could be entertained only on compliance of the period of limitation prescribed under Section 11B of the Central Excise Act. On the ground that in all these cases, claims have been made beyond the period of limitation, the Commissioner (Appeals) has rightly rejected all the six claims of the respondent. The said order has been interfered by the CESTAT by holding that as per Rule 5, no period of limitation could be prescribed in the absence of the notification by the Central Government as to the relevant date. This finding of the Tribunal is contrary to the provisions of the Act and Rules and the notification made thereunder. The learned counsel would further submit that in any case, in the absence of sufficient materials produced before the authorities, the rejection of the claim for refund is well justified and the Tribunal ought not to have remanded the matter for that reason. 9. On the other hand, the learned counsel for the respondent would submit that thought the provisions of Section 11B is not strictly made applicable to the refund of CENVAT credit as it applies only for the claim of duties and interes .....

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100% export oriented, Rule 5 of the CENVAT Credit Rules, 2004. entitles for making claim for refund of CENVAT credit and the relevant portion of the said rule reads as under: "RULE 5. Refund of CENVAT credit. - Where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the, CENVAT credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of, (i) duty of excise on any final product cleared for home consumption or for export on payment of duty; or (ii) service tax on output service and where for any reason such adjustment is not possible, the manufacturer or provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification." 13. In terms of the said rule, the Central Government should notify as to the safeguards, conditions and limitations. Accordingly .....

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for us to hold that the relevant date should be the date on which the export of the goods was made and for such goods, refund of CENVAT credit is claimed. 16. The learned counsel for the respondent would rely upon a judgment of the Gujarat High Court reported in 2008 (232) E.L.T. 413 (Guj.) [Commissioner of Central Excise and Customs, Surat-I Vs Swagat Synthetics]. That was a case relating to sub-rule (13) of Rule 57F of Central Excise Rules, 1944, which reads as under: "(13) Where any inputs are used in the final products which are cleared for export under bond or used in the intermediate products cleared for export in according with sub-rule (4), the credit of specified duty in respect of the inputs so used shall be allowed to be utilised by the manufacturer towards payment of duty of excise on any final products cleared for home consumption of for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification in the Official Gazette." The said rule does not prescribe any time-li .....

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Eaton Industries Private Lts., - 2011 (22) STR 223 (Tri-Mum) Wherein this Tribunal has taken a view that in case of export of services the 'relevant date' is the date when the payment of export has been received by the assessee. This is based upon Rule 3(2) of Export of Services Rules, 2005 wherein it is provided that the provision of any taxable service shall be treated as export of service when the payment of such service is reveived by the service provider in convertible foreign exchange. I have gone through the Export of Service Rules, 2005. Rule 3(2) and (4) of Export of Services Rules, 2006 reads as under: "2) The provision of any taxable service specified in sub-rule (1) shall be treated as export of service when the following conditions are satisfied, namely - (a) such service is provided from India and used outside India; and (b) Payment for such service is received by the service provider in convertible foreign exchange. Explanation - For the purposes of this rule "India" includes the designated areas in the continental shelf and Exclusive Economic zone of India, as declared by the Notifications of the Government of India in the Ministry of Externa .....

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ertible foreign exchange so as to get the benefit of service tax. The date of receipt of such payment is not relevant for determining the time of export. In view of the above analysis, I hold that the relevant date for determining the period of limitation will be the date of export of services or the date when the invoices are raised. 10. Learned advocate has quoted judgment of Hon'ble Mumbai High Court in the case of Uttam Steels Ltd. (supra). This judgment was in the context of change in period of limitation from six months to one year, which is not an issue here. Ld. advocate has quoted numerous other judgments. In view of para 7,8 and 9 above, I do not consider it necessary to discuss each of these judgments. 11. In addition to above, refund of ₹ 5,268/- relating to Custom House Agent services is denied on the ground that the appellants have failed to establish that these services are used in providing the output services exported and there is no supporting C.A. Certificate The appellants have explained that the said service is utilized for clearance of import consignment and the said goods were used for purpose of rendering of services. In view of this position, the .....

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