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AAM Services India Pvt. Ltd. Versus Commissioner of Central Excise, Pune-III

2015 (9) TMI 687 - CESTAT MUMBAI

Rejection of refund claim - Bar of limitation - Held that:- There is no dispute as to the fact that the appellant had exported the services and are claiming the refund of the service tax paid on the input services, which are used for providing such export service. It is also undisputed that the refund claims have been filed on 26/03/2010 and that foreign remittance have come during the period April to June 2009. - Consultant was correct in stating that this judgement of the Tribunal [2013 (7) TM .....

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Shri S R Nair, EO (AR) ORDER Per M V Ravindran 1. This appeal is directed against Order-in-Appeal No. P-III/VM/323-324/2010 dated 01/12/2010 passed by Commissioner of Central Excise (Appeals), Pune - III. 2. Heard both sides and perused the records. 3. The issue involved in this case is regarding rejection of refund claim of an amount of ₹ 15,10,021/- as filed by the appellant for the refund of amount of service tax credit taken on the inputs service and used for export services during th .....

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our attention to the facts of the case and submits that foreign exchange realization for the service exported during January 2009 was received during the period April to June 2009. It is his submission that judgement of the Tribunal in the case of Bechtel India Pvt. Ltd., Vs. CCE, Delhi reported in 2014 (34) STR 437 (Tri-Del), settled that refund application should be filed within a period of one year from the date of foreign exchange received in India, and in this case refund application has f .....

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nd in prescribed Form "A" before the expiry of period specified under Section 11B of the Central Excise Act, 1944. It is his submission that since the invoices for the services rendered, which were exported were in the month of January and February 2009 and the refund claim having been filed on 26/03/2010, the refund has been correctly rejected and hit by limitation. 6. On careful consideration of the submissions made by both the sides, we find that there is no dispute as to the fact t .....

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held as under: 4. Issue involved in these appeals is whether claims filed by the appellants are time-barred as held by lower authorities or in time as claimed by the appellants. 5. These claims have been filed under Rule 5 of the Cenvat Credit Rules which reads as under :- "Rule 5. Refund of Cenvat Credit. - Where any input or input service is used in the final products which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products .....

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subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification. [Explanation. - For the purposes of this rule, the words "output service which is exported" means the output taxable services exported in accordance with the Export of Services Rules, 2005.] Condition, safeguards and limitation have been prescribed under Notification 5/2006, dated 14-3-2006 Relevant extract of which are reproduced below :- "In exercise of the p .....

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of input service used in the manufacture of final product which is cleared for export under bond or letter of undertaking (b) Input or input service used in providing output service which has been exported without payment of service tax, subject to safeguards, conditions and limitations, set out in the Appendix to this notification Appendix 1. The final product or the output service is exported in accordance with the procedure laid down in the Central Excise Rules, 2002, or the Export of Service .....

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intained 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. As per condition 1, output service is to be exported as per Export of Services Rules, 2005. Rule 3 of the Export of Services Rules, 2005 is reproduced below :- Rule 3 .....

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d), (zzf), (zzg), (zzh), (zzi), (zzj), (zzl),(zzm), (zzn), (zzo), (zzp), (zzq), (zzs), (zzt), (zzv), (zzw), (zzx), [(zzy), (zzza), (zzzb), (zzzd), (zzze), (zzzf) and (zzzh),]; and (ii) the taxable service specified in sub-clause (d), and(zzzc) as are provided in relation to an immoveable property, of clause (105) of section 65 of the Act,- (i) such taxable services which are provided and used in or in relation to commerce or industry and the recipient of such services is located outside India : .....

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is received by the service provider in convertible foreign exchange; (iii) Such taxable services which are provided and used, other than in or in relation to commerce or industry, if the recipient of the taxable service is located outside India at the time when such services are received. Similarly relevant date as defined under Section 11B of Central Excise Act, is as under : Section 11B Explanation.- (B) "relevant date" means,- (a) in the case of goods exported out of India where a .....

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outside India. (b) ……………………. (c) ……………………………..s (d) ………………………………… (e) ……………………………………. (ea) …………………………&helli .....

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