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TMI Blog2016 (2) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable for export made prior to that date. Aggrieved by such an order, an appeal was preferred to the first appellate authority. The first appellate authority also concurred with the views of the lower authorities and concluded that for the period prior to 19.04.2005, notification no. 12/2005 will not apply and the refund claim for that period is accordingly rejected while for the period post 19.04.2005, he has remanded the matter back to the adjudicating authority to reconsider the issue after scrutinizing the documents. Aggrieved by such an order the appeal is before the Tribunal. 3. Learned Advocate draws our attention to the facts of the case, show cause notice issued and the orders passed by the lower authorities. It is his submission that the rejection of refund claim is incorrect and there is no dispute that they had exported the services and/or eligible to avail CENVAT credit on the input and input services. It is also his submission that there is no dispute as to the fact that input services and inputs are used for the exported services. He would submit that the judgment of the tribunal in the case of WNS Global Services P. Ltd. 2008 (10) STR 273 will be applicable, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of output services is effective from 19.04.2005, any export made after 19.04.2005 are only eligible for the refund in the said Rule 5, we are afraid that such an interpretation would defeat the entire wisdom of the government of India in making the export of services competitive in the international market. The view and the findings recorded by both the lower authorities are flawed for more than one reason. (a) Firstly, we find that the said Rule 5 though brought into statute in Export of Service Rules 2005 from 19.04.2005, cannot be said having applicable only for the exports made from 19.04.2005. In order to appreciate the correct position, we reproduce the relevant part of said rules which reads as under. "5. Where any taxable service is exported, the Central Government may, by notification, grant rebate of service tax paid on such taxable service or service tax or duty paid on input services or inputs, as the case may be, used in providing such taxable service and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification." It can be seen from the above reproduced Rule th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be, describing the taxable service intended to be exported with, - (a) description, quantity, value, rate of duty and the amount of duty payable on inputs actually required to be used in providing taxable service to be exported; (b) description, value and the amount of service tax and cess payable on input services actually required to be used in providing taxable service to be exported. 3.2 Verification of declaration. - The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall verify the correctness of the declaration filed prior to such export of taxable service, if necessary, by calling for any relevant information or samples of inputs and if after such verification, the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise is satisfied that there is no likelihood of evasion of duty, or as the case may be, service tax and cess, he may accept the declaration. 3.3 Procurement of input materials and receipt of input services. - The provider of taxable service shall, - (i) obtain the inputs required for use in providing taxable service to be expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001), as amended by section 169 of the Finance Act, 2003 (32 of 2003), section 3 of the Finance Act, 2004 (13 of 2004) and further amended by clause 123 of the Finance Bill, 2005, which clause has the force of law by virtue of the declaration made under the Provisional Collection of Taxes Act, 1931 (16 of 1931); (e) special excise duty collected under a Finance Act; (f) additional duty of excise as levied under section 157 of the Finance Act, 2003 (32 of 2003); (g) Education Cess on excisable goods as levied under section 91 read with section 93 of the Finance (No. 2) Act, 2004 (23 of 2004); and (h) the additional duty of excise leviable under2 [section 85 of the Finance Act, 2005 (18 of 2005)]." It can be seen from the above reproduced notification that the said notification also does not indicate that an assessee has to export the services on or after 19.04.2005 to avail benefit of rebate of CENVAT credit. A plain reading of the notification indicates that taxable services has to be exported in terms of Rule 3 and payment of export of such taxable servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fected only that part of the sentence which remained to be served in future." The above reproduced ratio would squarely cover, the matter in the case in hand. The revenue was aggrieved by such a view expressed by the bench and preferred an appeal before Honble High Court of Bombay, their Lordships, vide their judgment and order dated 10th February, 2011 (as reported at 2011(22) STR 609) disposed of the appeal by recording as under. "9. The above finding of the CESTAT cannot be faulted because substituted Rule 5 of the Cenvat Credit Rules, 2004 does not make any distinction between exports made prior to 14.3.2006. In other words, as per the substituted Rule 5 refund of unutilized cenvat credit in respect of exports effected in the past is available to the manufacturer as well as provider of output service. Proviso to Rule 5 as it stood prior to the amendment on 14-3-2006 clearly provides that refund of unutilized credit is available to the therein. As noted earlier the appellant fulfills all other conditions. Thus, reading the Rule 5 as it stood prior to its amendment, as a whole, it is evident that refund of unutilized credit is allowable not only to manufacturers but als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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