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2015 (11) TMI 107 - CESTAT MUMBAI

2015 (11) TMI 107 - CESTAT MUMBAI - TMI - Refund claim - Unutilized CENVAT Credit - Determination of Date of Export of service - Rule 5 - Period of limitation - Held that:- export of service shall complete only when the (a) services is provided from India and use outside India (b) payment of such services is received by the service provider in convertible foreign exchange. In the present case it is undisputed fact that though the part of the services provided in the year 2007 and part of the ser .....

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eign exchange is received in India as per Export of Service Rules, 2005 (i). In the Section 11B, relevant date for refund of export of goods is date of export. Section 11B is made applicable for claiming refund under Rule 5 of the Cenvat Credit Rules as per condition 6 of Notification 5/2006. In case of export of Services, export is complete only when foreign exchange is received in India. Therefore relevant date of export of services is date of receipt of foreign exchange. In the present case a .....

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under Rule 5 in respect of export of services for which export has been defined in the Export of Service Rules, 2005. Section 11B only specifies one year period from the relevant date and relevant date is not same in respect of goods as well as services. Since the fact of the present case is different from the case of GTN Engineering (I) Ltd, [2011 (8) TMI 960 - MADRAS HIGH COURT] the same is not applicable. In view of the above discussion, I find that Ld. Commissioner (Appeals) has rightly allo .....

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eal and upheld the order in original. 2. The facts of the case is that the respondent is engaged in providing the service of research and development to foreign clients, accordingly they are registered with the service tax department. Respondent have paid service tax on the input service and Central Excise duty on input used in the rendering output service. Since the respondent are not in position to utilize the credit they have filed refund claim with the department under Rule 5 of the Cenvat C .....

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peals) therefore the Revenue is before me. 3. Shri. B.K. Iyer, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the grounds of appeal. He submits that in respect of two invoices covered under invoice No. EOU/2008/033 dated 27/6/2008 and invoice No. EOU/2008/037 dated 30/6/2008, it was clearly mentioned that the services were provided for export in the year 2007 and therefore in respect of these two invoices the refund is clearly time bar. He placed reliance on the followin .....

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that except the aforesaid two invoices, other invoices were raised in the year commencing April, 2008 in respect of services also provided in the quarter April, 2008 June, 2008. He submits that even in respect of these two invoices though the services was provided in the year 2007 but invoices of such services raised in the quarter April, 2008 June, 2008 only. He further submits that in case of export of service, the export shall complete not only at the time of providing the services and not e .....

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export is not completed. In the present case though certain services were provided in the year 2007 and remaining were provided in the quarter April, 2008- June, 2008 but value of remittance in respect of the services were received by the respondent during 5/8/2008 to 19/11/2008 which can be seen from the FIRCs against all the invoices covered under subject refund claim. He placed reliance on the following judgments; (a) Bechtel India Pvt Ltd. Vs. CCE. Delhi[2014(34) S.T.R 437 (Tri. Delhi)] (b) .....

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acts, I observed that the Revenues grievances is that the period of limitation should be reckoned from the date of export of services. However, I find that only in respect of two invoices the services were provided in the year 2007 therefore if at all appeal to be filed by the Revenue, it could have been restricted to the said two invoices only. Raising all the invoices as well as services pertains to the period quarter April, 2008 June, 2008 in respect of such claims even the contention of the .....

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e (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 External Affair .....

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ved by the service provider during 5/8/2008 to 19/11/2008 therefore even applying Section 11B one year period expire on 5/8/2009 whereas the refund was admittedly filed on 15/4/2009 that is well within the one year time period as provided under Section 11B therefore the refund claim is not liable for rejection on time bar. The issue that, what is the relevant date of export in respect of services in the following judgments it was held as under: Bechtel India Pvt Ltd 7. On going through above pro .....

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n the Section 11B, relevant date for refund of export of goods is date of export. Section 11B is made applicable for claiming refund under Rule 5 of the Cenvat Credit Rules as per condition 6 of Notification 5/2006. In case of export of Services, export is complete only when foreign exchange is received in India. Therefore relevant date of export of services is date of receipt of foreign exchange. In the present case all the four claims have been filed within 1 year from the date of receipt of f .....

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h clear in the case of export of service, the relevant date is the date when the payment of service exported has been received by the assessee. 8. In the instant case the lower appellate authority has also held that in the case of export of service the relevant date is the date when the assessee has received the payment of service exported and within one year from the date of receipt of the payment of service exported, the assessee is required to file the refund claim. 9. Accordingly, I do not f .....

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limit for grant of refund would be the date of receipt of consideration and not the date when the services were provided. If the date of receipt of consideration is reckoned then the claims are perfectly within time limit, and if date of rendering services is taken then obviously most of the claims would be time barred. The Tribunal has held that the relevant date would be the date of receipt of consideration and, when such decision has not been appealed against nor it has been reversed or overr .....

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