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M/s Clearpoint Learning Systems (India) Pvt. Ltd. Versus Commissioner of Central Excise, Pune-III

2015 (6) TMI 749 - CESTAT MUMBAI

Denial of refund claim - Bar of limitation - Held that:- Following the ruling of the Division Bench of this Tribunal in the case of KPIT Cummins Infosystems Ltd. (2013 (7) TMI 124 (CESTAT-Mum)),and Hon'ble M.P. High Court in STI India Ltd. (2008 (10) TMI 246 - HIGH COURT OF MADHYA PRADESH AT INDORE), I hold that limitation will not apply for claim of refund of CENVAT Credit in case of export of service in terms of Section 11B of the Central Excise Act read with Rule 5 of the Cenvat Credit Rules. .....

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IV(SMB) - Dated:- 16-7-2014 - Hon ble Shri Anil Choudhary, Member (Judicial),J. For the Appellant : Shri Parag Phanse, Company Secretary For the Respondent : Shri B.K Iyer, Supdt. (AR) ORDER Per: Shri Anil Choudhary The appellant, M/s Clearpoint Learning Systems (India) Pvt. Ltd., have filed these four appeals for different periods against Orders-in-Appeal No. P-III/VM/283/2010 dated 2.11.2010 and others passed by the Commissioner of Central Excise & Service Tax (Appeals), Pune-III wherein h .....

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/11 Jan to March, 2009 P-III/VM/283/ 2011 dt. 2.11.2010 269,894 108,583 161,311 Total 473,985 108,583 365,402 2. The appellant is registered with Service Tax department as a service provider under the category of Information Technology Software Services. The appellant exports 100% of its services to its clients outside India. The appellant takes CENVAT Credit of the input services utilized for rendering the output services. As export of service is not taxable service, the appellant being unable .....

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laim was held time barred and it was disallowed. Being aggrieved the appellant preferred appeals before the Commissioner (Appeals). Part of the refund was also rejected for non-production of relevant input service invoices. The learned Commissioner (Appeals) agreeing with the finding of the adjudicating authority, dismissed the appeals. Being aggrieved the appellant has preferred appeal before this Tribunal. 3. Before this Tribunal, the only ground, the appellant has raised is regarding rejectio .....

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efore, bar of limitation cannot be a ground to refuse refund of CENVAT Credit to the assessee. Following the ruling of Hon'ble Karnataka High Court, the Division Bench of this Tribunal (in which I was also a Member) in the case of KPIT Cummins Infosystems Ltd. Vs. Commissioner of Central Excise, Pune-I 2013 (7) TMI 124 (CESTAT-Mum) has held that bar of limitation cannot be a ground to refuse refund of CENVAT Credit in case of export of service. Further, from plain reading of Rule 3(2) of the .....

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be the date on which the convertible foreign exchange is received in India. 4. It is further argued that Rule 5 of Cenvat Credit Rules provides for refund on the satisfaction of the additional condition being where for any reasons such adjustment is not possible, the manufacturer/provider shall be allowed refund . Thus, the person/assessee, only on satisfying the condition that input credit cannot be adjusted due to nature of his business, will be entitled to refund. Further, no time limit is pr .....

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he refund application is not strictly filed within specified period, read with Section 11B, could not have been made the sole ground of rejection. It was also held that the claim of refund under Rule 57F did not strictly fall within the four corners of Section 11B, but it essentially fall under clause 6 of appendix to Notification under Rule 57F. Thus, refund could not have been rejected on limitation. 6. The learned AR appearing for the Revenue reiterates the findings of the lower authorities a .....

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